Northumberland County Bank v. Eyer

The opinion of the court was delivered, February 3d 1868, by Sharswood, J. These were actions on three several guaranties by the defendant in error, who was also the defendant below, on promissory notes drawn by Peter Henninger in favor of, and purporting to be endorsed by, John Noll. On the trial in the court below the plaintiffs having proved the signatures of the defendant, and given evidence that Peter Henninger, the maker of the note, was insolvent and had absconded, offered the record of ah action by the plaintiffs against John Noll, and proved a notice in writing from their attorney of that suit, and that it was duly served on him more than twenty days before the trial. The record contained the charge of the court, with notes of the evidence. There can be no doubt that this formed a part of the record. By the Act of February 24th 1806, § 25, 4 Sm. Laws 276, it is made the duty of the presidents of the Courts of Common Pleas, if either party 6r their counsel require it, to reduce their opinion in any cause to writing, and to file the same of record. It has been held that the opinion thus'filed by the positive command of the law is of the body of the record, and that the law intends that the judge shall place upon the record also such facts as are necessary to explain his opinion: Downing v. Baldwin, 1 S. & R. 298; Munderbach v. Lutz, 14 Id. 125. The evidence filed in the case of The Northumberland County Bank v. John Noll constituted such a statement, not so formal perhaps as it might have been; and it shows very clearly that the oftly question submitted to, and passed upon by, the jury was whether the endorsements of Noll were genuine. The verdict was for the defendant. No jury-fee, however, was paid and no judgment entered. The record was admitted under exception by the 'defendant. That exception is not before us on this writ of error. Had there been judgment upon the verdict it would perhaps have been conclusive upon the defendant, under the notice he had received: Leather v. Poultney, 4 Binn. 352; Morris v. Buckley, 11 S. & R. 168; Weckerly v. Lutheran Congregation, 3 Rawle 172; Coates v. Roberts, 4 Id. 100; Ayres v. Findley, 1 Barr 501; Barber v. Wolcott, 3 Harris 57: and the main question in the cause would have been very much simplified if not entirely resolved. For if Noll was no party to the notes it could not have been preténded that the defendant’s contract had been made with him, and there was no other party with whom it could have been made but the bank and Henninger, whose primary engagement as maker was that which was guaranteed. As, however, it was to be presumed, in the first instance, that the signatures of Noll on the paper offered by the plaintiffs were genuine, and the record can only be regarded as [103] evidence for the purpose for which it was offered and received — • to show due diligence — we cannot say that the court was in error in admitting the evidence of Noll’s ability to pay, which forms the subj ect of the 1st assignment of error by the plaintiffs. We are of opinion, however, that the court below erred in their answer to the plaintiffs’ 1st point, to the defendant’s points and in their charge to the jury. These are all based upon the position that it was incumbent on the plaintiffs to prove affirmatively that the contract of guaranty was in fact made with them. It is undoubtedly true that such a contract is not assignable at law so as to entitle the assignee to sue in his own name: Beckley v. Eckert, 3 Barr 294. But there was evidence in the cause which tended to show — and indeed it does not appear to have been disputed — that if Noll was indeed a party • to the notes it was as endorser for the accommodation of Henninger, the maker. The notes were not, in the first instance, available instruments. Noll could have maintained no action against Henninger without showing that he had been obliged to pay them to some subsequent party to whom they had been transferred. They were made to be discounted. Now as it appeared that the plaintiffs were the first and only holders for value, the law implied that the contract of guaranty was made with them. It is not distinguishable from a general letter of credit; and it is well settled that an action may be maintained on such a letter by and. in the name of the person who gives credit on the faith of it: Lawrason v. Mason, 3 Cranch 492; Aldricks v. Higgins, 16 S. & R. 212. Indeed the very point was decided in McLarra v. Watson’s Executors, 26 Wend. 642. The jury should have been instructed, then, that if they believed from the evidence that Noll endorsed these notes for the accommodation of Henninger, and due diligence had been used, that the plaintiffs were entitled to a verdict. Judgments reversed, and venire faeias de novo awarded in each case.