Breneman v. Furniss

Mr. Justice Sterrett delivered the opinion of the court, The defendant in the court below contended that he permitted the use of his name as payee and endorsed the check in suit, at the request of and as a matter of accommodation to the plaintiff, not only without consideration, but upon the express promise and agreement that he should incur no liability by reason of his endorsement. It Avas competent, as between the immediate parties to the transaction, to prove these allegations. 'An attempt on the part of the plaintiff to enforce payment of the check under these circumstances was making such an improper use of it as would justify proof of the agreement under which it is alleged the endorsement was procured: Hill v. Ely, 5 S. & R. 363; Ross v. Espy, 16 P. F. Smith 481. The defendant offered to prove the facts above stated, together with the circumstances connected thereAvith, as explanatory of the transaction. The court permitted him to prove the naked fact that the-“ check Avas given Avith the understanding that he should incur no liability thereon,” but studiously'excluded all testimony tending to show the circumstances under Avhieh he permitted the use of his name as payee and became endorser of the check, or the purpose for Avhieh it Avas done. In this we think there was error. The result Avas that there Avas little or no testimony before the jury to explain Avhy the plaintiff should request him to endorse the check, and at the same time agree that under no circumstances should he incur any liability by virtue of his endorsement. Within the narrow limits thus prescribed by the ruling complained of some testimony, as to the isolated fact of the agreement, was introduced, upon the strength of Avhieh the court Avas requested to charge the jury that if .they believed, “the plaintiff had agreed Avith the defendant that he should incur no liability by reason of his endorsement of the check in suit, their verdict must be for the defendant.” This point Avas affirmed, and thus the question of fact, vital to the defence, Avas presented and submitted to the jury; but it Avas found adversely to the defendant. If proof of the circumstances directly connected Avith and leading to the alleged agreement, and explanatory thereof, had been admitted, it Avould have tended, in some degree at least, to corroborate the defendant, and might have satisfied the jury that, his version of the affair w.as the true one. The case was one in which a knoAvledge of the res gestee might very materially aid the jury in reaching a correct conclusion. What was confidently asserted on the Avitness-stand by the one party, in regard to the agreement on the faith of which the check was endorsed, was just as positively denied by the other; and in searching for the ti’uth, the jury needed all the light that could be shed on the transaction by the circumstances immediately connected therewith. For this purpose alone we think the testimony referred [190] to in the fourth to eighth assignments of error, both inclusive, should have been received. There is nothing in either of the remaining assignments that calls for special notice. Judgment reversed, and a venire facias de novo awarded.