Lehigh Valley National Bank v. Ott

Opinion bx Mr. Justice Mestrezat, We are all of the opinion that the record in this case discloses no reversible error, and that the judgment should be affirmed. The controverted question in the court below was whether Robert B. Ott, surviving member of Robert J. Ott & Son and who made the real defense in the case, was liable on the note in suit endorsed by his father, the other member of the firm, in the name of the firm for the accommodation of the maker. Robert [569] B. Ott denied that the making of negotiable paper was within the scope of the business of the firm, and alleged that he had no knowledge of and did not' consent to the endorsement of the note in suit. The question was submitted to the jury by the court below in language to which no exception was taken. The learned judge charged inter alia as follows: “Now, I say to you that if it was a usual and customary thing within the scope of their business to make accommodation notes in order to raise money, either temporarily or for a longer term, to their clients on whose property they proposed to raise mortgage loans, and if this defendant, Robert B. Ott, knew that fact then Robert B. Ott would be liable for the endorsement made by his father. That is, if one partner signs or endorses an instrument in the firm’s name and the other partner knows it, or consents to it, or is present at the execution, then he is as much bound by the instrument as if he had signed it himself. If it was not within the usual scope of their business, but if Robert B. Ott was present when these notes were endorsed by his father and knew about it, or if it was the arrangement between them that the father was the business end of the firm and that the younger man assented to whatever the father did, then Robert B. Ott is liable upon this endorsement.” Under these instructions the jury found for the plaintiff. There is no assignment of error which raises the question of the sufficiency of the evidence to support a finding for the plaintiff on the instructions. The assignments all go to the admissibility of certain testimony. The court properly admitted the testimony offered for the purpose of showing that the defendant furnished the bank a statement of the firm’s liabilities after his father’s death, as it, with other evidence in the case, tended to show an admission by the defendant of his liability on the note. The testimony complained of in the third assignment was likewise competent for the same purpose. We cannot agree with the appellant that the proof did not connect the statement made [570] by the defendant with the note in suit. It is true there was some discrepancy in the figures but the evidence was sufficient to warrant the jury in finding that the note was included in the $12,209.49 item of the account. The other assignments are clearly without merit and need no discussion. It may, however, be suggested that if the testimony offered was improperly rejected it did the defendant no harm. The firm of Robert J. Ott & Son was for many years engaged at Bethlehem in the business of mortgage loans and insurance. The testimony fully warranted a finding by the jury that its business included the making of accommodation paper, and that to the knowledge of both partners such paper was frequently made by the firm. It appeared that the note in suit was the last of several renewals of an accommodation note endorsed by the firm several years prior thereto, and that, while his father usually attended to this part of the firm’s business, Robert B. Ott on one occasion at least renewed the note. The evidence was so conclusive that had the jury failed to find such to be the facts, it would have been the duty of the court to set aside the verdict. The exclusion of the evidence complained of in the assignments if technically erroneous may, therefore, be regarded as harmless error, and does not warrant the reversal of the judgment. The judgment is affirmed.