Helzer v. Helzer

Opinion by Mr. Justice Mitchell, At the former trial a note was produced by the defendant, but plaintiff declined to accept it as the note sued on, and nothing further was done in the way of establishing that fact. We were therefore obliged to reverse the judgment, 187 Pa. 243. On the second trial the defendant not only produced the note again, but had it clearly identified on the cross-examination of the subscribing witness. The court therefore had before it the case of a narr. on a note assumed to be lost and evidence given of its contents, followed by the production of the note and its identification by plaintiff’s own witness. The evidence previously received on the theory of loss should then have been struck out on defendant’s motion, and plaintiff declining to offer the note, there was nothing before the court on which she could recover. The defendant himself, however, put the note in evidence, accompanied by testimony that it was in his possession at the time of his father’s death and had been ever since. There was no evidence either of payment or nonpayment of the note, the plaintiff offering none and the defendant being rendered incompetent to testify by the death of the payee. We have the question, therefore, on the legal presumption alone, whether the payee can recover on a judgment note which is in the hands of the maker, with no explanation how it got there after delivery. Appellant argues that the circumstances are not sufficient to raise a presumption of payment, and cites a number of cases, beginning with Eckert v. Cameron, 43 Pa. 120. All of the [224] cases, however, refer to commercial paper, and the rale is thus stated by Greenleaf: “ Where in the ordinary course of dealing, a security when paid is given up to the party who pays it, the possession of the security by the debtor after the date of payment is prima facie evidence that he has paid it. But the mere production of a bill of exchange from the custody of the acceptor affords no presumption that he has paid it, without proof that it was once in circulation after he accepted it:” 2 Greenleaf on Evidence, sec. 527. Commercial paper, therefore, is the exceptional case, and the reason for it is found in Eckert v. Cameron, supra, where it was held that a note discounted for the maker before maturity, but after an indorsement, raised a presumption in favor of the holder, not that it had been paid by the maker and reissued, but rather that the indorsement was for Ms accommodation. Greenleaf in support of the text above quoted cites the ruling of Lord Elbenborough in Pfiel v. Vanbatenberg, 2 Camp. 439, and in Connelly v. McKean, 64 Pa. 113, Sharswood, J., commenting on that case, says, having proved that the bills were originally lent, “ Why should not the possession of them by the acceptor after maturity raise the presumption that he had paid them? With the highest respect for so great an authority upon nisi prius law, I may be allowed to express a doubt as to the sufficiency of the reason. Contrary to established principle it presumes a fraud to have been perpetrated, when the natural presumption is that which consists with honesty.” This is the precise ground on which the learned judge below ruled the present case. Whether there was a legal presumption of payment it was not necessary for him or for us to consider. What he held was that there could be no presumption from the bare fact of possession that it was unlawful, and therefore without some further evidence the plaintiff could not recover. In this he was right. The evidence as to defendant’s presence in his father’s house, and also that offered as to his threats in his father’s lifetime “ to get even with him,” etc., amounted to no more than a basis for suspicion in an unfriendly mind that defendant had wrongfully taken the note out of his father’s room after death. The learned judge rightly held that it fell short of the proof necessary to permit the jury to find such wrongful taking as a fact. [225] The note was properly admitted in evidence. The cancelation of the signature was fully explained by disinterested testimony, and the writing on the back was not admitted. Had the case gone to the jury it would have been proper to cover the back of the note so as effectually to conceal the writing, or to have submitted to them a verified copy in place of the original with the objectionable indorsements. But as the judge directed the verdict on the absence of evidence on which the jury could properly find for plaintiff there was no error in admitting the face of the note. Judgment affirmed.