Troxell v. Malin

Opinion by Orlady, J., The defendants set up several grounds of defense, the principal ones being, (1) that the note in suit was given in part payment for a patent right, of which fact, the plaintiff had full knowledge at the time he received it; (2) that the plaintiff was not a bona fide holder for value, but was merely allowing the use of his name, for the benefit of the payee; (3) failure of all consideration, in that the inducing cause for giving the note was a promise made by the payee, which had not been in any 490 maimer performed. Tlie integrity of the transaction was successfully attacked, and the jury returned a verdict in the defendants’ favor, under a defense which went to the foundation of the plaintiff’s right to recover. Proof was adduced to show that the note in suit was one of two notes for $600 each, which had been substituted for another note for $1,200, on which larger note the prescribed words “given for a patent right” were truthfully placed; that in writing the note in suit, the words required by the statute were inadvertently omitted, and that Barnard with full knowledge of this fact, fraudulently arranged with Miller and Troxell to so transfer the note by indorsements, as would prevent the defendants from making any defense to Iris original fraud. The evidence was very contradictory, and the credibility of the witnesses being wholly for the jury, the verdict determines the truthfulness of the defense. In making Miller and Troxell mere accomplices of Barnard, the defendants could avail themselves of any defense that they could have asserted if the suit had been brought by Barnard. The note did not contain the words “ given for a patent right,” and if, as contended, these words should have been thereon, they were fully protected by the act of assembly which provides, “such note or instrument, in the hands of any purchaser or holder, shall be subject to the same defenses, as in the hands of the original owner or holder:” Act of April 12, 1872, P. L. 60; Haskell v. Jones, 86 Pa. 173; Hunter v. Henninger, 93 Pa. 373; Weaver v. Frantz, 1 Penny, 153; Horstman v. Zimmerman, 4 Atl. Rep. 171. An allegation of fraud opens a wide door to the admission of evidence. In Stauffer v. Young, 39 Pa. 455, the reason of the rule was fully and clearly stated; “the meaning of the maxim that great liberality of evidence is to be allowed in the trial of questions of fraud, is that every circumstance in the condition and relation of the parties, and every act and declaration of the person charged with the fraud shall be competent evidence, if in the opinion of the judicial mind it bears such a relation to the transaction under investigation as in its nature is calculated to persuade the jury that the allegation of fraud is or is not well founded: ” Glessner v. Patterson, 164 Pa. 224; and, the order in which the testimony is received is largely within the discretion of the trial judge: Amrhein v. Clausin, 491 155 Pa. 93. The excerpt oi the judge’s charge covered by the sixth assignment, standing alone, was not a fair submission of a disputed fact, but it represented an incomplete thought and must have been so understood by the jury; and when taken in connection with the sentence immediately preceding and directly associated with it, the vital question in the case was plainly and fairly referred to the jury. The defense went much farther than to attempt to reform the writing, it merged Miller and Troxell into Barnard, and resisted the claim as against him. The contention was that, all that Barnard knew in regard to the note was imparted to Miller and Troxell, who lost their identity as indorsers and were mere go-betweens for the real plaintiff. The verdict does not rest alone on the testimony of the defendants, the manner as well as the subject-matter of the testimony of these two witnesses for the plaintiff, may have aided the defendants’ instead of the plaintiff’s cause. “ The credibility of a witness is for the jury, and they are not bound to accept his statements because he is unimpeached and uncontradicted by other witnesses. He may impeach and contradict himself on the witness stand, or the jury may believe that he is honestly mistaken. His manner, the motive or bias, the inherent improbability of his story or the want of accurate recollection, may discredit his testimony and justify a jury in disregarding it altogether. The question is for the jury and not for the court: Lautner v. Kann, 184 Pa. 334; Com. v. Jongrass, 181 Pa. 172; Coal Co. v. Evans, 176 Pa. 28. The first point submitted by the plaintiff correctly stated the issue, and its affirmance by the court was a 'proper submission of the case, which was ably and fairly tried, and resulted in a verdict which was fully supported by the evidence. The assignments of error are overruled and the judgment is affirmed.