Cummings v. Boyd

Mr. Justice Gordon delivered the opinion of the court, February 12th 1877. We agree with the court below that the plea of the defendant is sufficient in form, and that, so far, the matter was well ruled. Whilst the rules of special pleading require pleas to be single, yet the defendant is not precluded from introducing several facts into one jdea, provided all tend to produce but a single issue. The matter alleged is the procurement by Barton of the note in suit by false and fraudulent representations, but as this of itself would not be sufficient to affect the holder, a statement is added showing the plaintiff to be a holder without consideration, except as to the sum of $500, advanced at the time of the receipt of the note, and which the plea states was paid by the defendant to the plaintiff. It will be seen, therefore, that this statement of these several facts is necessary to a single issue, and the omission of any one of them wmuld leave the plea defective. That the plea is bad because it amounts only to the general issue, non-assumpsit, is negatived by^ the consideration that, strictly, the allegation of fraud can only be introduced through or by the means of special pleading: Clark v. Partridge, 2 Barr 13. We do not, however, agree with the learned judge in holding the plea to be insufficient in matter of substance. Whilst it is true that accommodation paper may be pledged as collateral security for an antecedent debt, yet this is so because such paper is a loan of the maker’s or endorser’s credit to the extent of the value of the note, and without restriction as to the manner of its use: Appleton v. Donaldson, 3 Barr 381. Nevertheless, such holder is not a purchaser for value, and the note in his hands may be impeached for fraud in its making or procurement: Ashton’s Appeal, 23 P. F. Smith 153; Hutchinson v. Boggs, 4 Casey 294. Now the plea under consideration sets out that this, an accommodation note, was obtained from the defendant by Barton, ,the payee, under false and fraudulent representations, as that he was worth, above all liabilities, one hundred thousand dollars or more, whereas, in. fact, he was insolvent; that he expressly promised to fill up the paper, which was signed in blank, in a sum of not more than six hundred dollars, whereas, he made it fourteen hundred and thirty-seven dollars. We have no hesitation in saying that the facts thus set out, and admitted by the demurrer, are sufficient to put an ordinary holder to proof of value, and consequently to defeat the claim of [377] one who, like the plaintiff, liolds only as pledgee for the security of a pre-existing debt. The judgment of the court, below is reversed, and it is now ordered that judgment be entered for the defendant. Subsequently, upon a rule to show cause why the entry of judgment for the defendants below should not be stricken off or set aside and the record remitted for further proceedings, the following judgment was entered by this court on the 12th of March 1877, Per Curiam. — Under the peculiar circumstances of this case we think our judgment should be modified. On the trial of the cause, the defendant filed a long and somewhat complicated special plea, so much so as to give it the color of duplicity and contradictiveness, as well as of insufficiency. The court below took that view of it. These circumstances indicate the strong inducement of the plaintiff to rely on a demurrer. Now, though we have reversed the judgment in demurrer, it was upon grounds that did not seem to have struck the minds of counsel or court. The result, therefore, has had the same effect as when a party is taken by surprise by a new plea. Ordinarily a party who rests his cause upon a demurrer, when he might have had a trial upon the facts of the plea, and then the benefit of the legal question, will not be helped out of the position he has voluntarily assumed; but this case is exceptional in its circumstances. It is therefore ordered that the judgment of the court below on the demurrer be reversed, and that the record be remitted to that court to determine whether a new trial shall be granted, and to make such order in the premises as to right and justice may belong.