Harvey v. Dimon

Opinion by

The facts of this case, and the various steps taken in the court below to obtain final judgment, are numerous and peculiar. They are fully set forth in the opinion of the court below, refusing judgment for want of a sufficient affidavit of defense. Assuming that that opinion will be brought into the report of the case, we content ourselves with a simple allusion to the main facts, so as to make our opinion intelligible in connection with that of the court below.

The use, by the plaintiff in his declaration, of one out of four distinct parts of which the instrument, upon which suit was founded, was finally found to consist, was certainly, to say the least, disingenuous and misleading. It strengthens the suspicion, which a careful reading of the whole instrument arouses, that it was specially designed for such a use.

The instrument, however, remains entire and intact and conveyed to the plaintiff, who alleges that he1 is an innocent holder for value before maturity, full knowledge of all the facts which fixed the liability of the defendant, and of which he could have taken advantage, if the obligation had remained in the hands of the original holder.

It is clear that the third part of the paper, variously called *91a “warranty” and a “guaranty” on the part of the Columbus Food Co., if the facts therein contemplated had arisen in such a way as to create a liability on its part, would have entitled the defendant to a defense to the payment of the second part of the paper, which is in the shape of a promissory note, as contained in the plaintiff’s declaration, at least to the extent which he may have suffered pecuniarily in warranting and guaranteeing the food, ordered in the first part of the paper, to customers, as directed in the said warranty.

The fourth part of the paper is as follows: “No agreement recognized, unless in writing on this sheet.” This, however, is signed only by “Stallsmith, salesman,” and is not signed by the defendant. Unless, therefore, he distinctly assented to it at the time of the execution of the paper, we cannot see that he would be bound thereby.

The defendant does not deny the execution of the agreement upon which the present action is founded. He claims, however, that certain representations were made by the agent who secured his signature which induced the execution of the agreement, and without which he would not have signed it, and that, in pursuance of those representations, he subsequently orally rescinded it. Under all our authorities, evidence is admissible to establish these facts. Among the latter ones are Machin v. Prudential Trust Co., 210 Pa. 253; American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451; Wheatley v. Niedich, 24 Pa. Superior Ct. 198; Keeler v. DeWitt, 24 Pa. Superior Ct. 463.

Whether or not they shall be established will be a question for the jury. We are clearly of the opinion that, under the allegations of the affidavit of defense, the defendant should have an opportunity to establish them.

The present holder of the agreement (the plaintiff in this action) took it with full notice of its contents. Independently, therefore, of the provisions of our negotiable instruments Act of May 16,1901, P. L. 194, we are of the opinion that the agreement upon which this suit is founded in its entirety is not a negotiable instrument and under sec. 196 of said act is governed by the rules of the law merchant.

For the reasons herein stated, we are of opinion that the *92plaintiff is in no better situation than would have been the original holder — the Columbus Food Company — and, as to the latter, if the defendant clearly established the facts set forth in his affidavit of defense, he would have had a valid defense to the payment of that portion of the agreement which is denominated “the note.”

Judgment affirmed.