Sunday v. Dietrich

Opinion by W. D. Porter, J., The court below admitted in evidence a promissory note which upon its face showed unmistakable evidence of material alterations, without any evidence whatever explaining said alterations. The learned judge based his ruling upon a rule of court in the following language : “ In actions upon promissory notes or other instruments of writing, if a copy thereof be filed thirty days or more before the time of trial of any case, and notice of such filing, together with a copy of said instrument, be served upon the defendant or his counsel not less than thirty days before said time of trial, it shall not be necessary in the trial in court or before arbitrators to prove the execution thereof, or the handwriting of the parties, drawers or makers, but the same shall be taken as admitted, unless the defendant shall file an affidavit denying that the same was executed by him or with his authority, or that the handwriting is the proper handwriting of such parties.” This is a very valuable rule of court, it was intended to simplify and shorten the trial of issues, and in trials which come within its province the court and jury ought not to be called upon to consider evidence touching matters with regard to which there is no dispute between the parties. In framing this rule the learned court below saw fit to embody certain conditions with which the plaintiff must comply before he can have the benefit of the rule. The incorporation of these conditions was, no doubt, wise and just; the power of the court to impose the conditions was ample as its power to ordain the rule, and the rule can only be enforced under the conditions which it establishes. It is not shown by either the record or the evidence that notice of the filing of a copy of the note in question, together with a copy of said instrument, was served upon the defendants or their counsel, and it is admitted in the paper-book of the appellee that this was not done. The plaintiff had not complied with the conditions precedent to the enforcement of [647] this rule of court and he could take nothing by its terms.- An act of assembly which confers a right upon the performance pf a condition can only be invoked when the condition has been performed. There is no peculiar virtue in a rule of court which will permit it to be enforced without regard to the conditions clearly set forth in its terms, upon which suitors had the unquestionable right to rely. If the ruling of the learned judge below can be sustained, it must be upon some other foundation than upon this rule of court. Had the rule provided that upon the mere filing of a copy of a note the defendant should be required, without further notice, within thirty days to file an affidavit denying the execution of the instrument under penalty, upon default, of having the execution taken as admitted; or if it had been shown that the conditions of the existing rule had been complied with, the ruling of the learned judge would have been free from error: Jacoby v. Westchester Fire Insurance Co., 10 Pa. Superior Ct. 171; Neely v. Bair, 144 Pa. 250 ; Whitehead v. School Dist. of North Huntingdon, 145 Pa. 418. As the plaintiff was not in a position to take advantage of this rule of court he was left in precisely the position which he would have occupied if the rule of court had never been written. In the absence of a rule of court the affidavit of defense had no bearing on the issue, and if the plaintiff wished to take advantage of it as an admission, he was bound to offer it in evidence at the trial: Flegal v. Hoover, 156 Pa. 276. When under such circumstances, and unaided by any rule of court, an affidavit of defense is offered in evidence, it is for the consideration of the jury, and does not change the issue : Brown v. DeLattre, 6 Wharton, 429; Stockwell v. Loecher, 9 Pa. Superior Ct. 241. The learned counsel for the plaintiff did not offer the affidavit in evidence, but contented himself with calling the attention of the court to it for the purpose of determining the issues being tried. The affidavit was, therefore, not before the jury for the purpose of evidence, and there was, for their consideration, no evidence pf an admission that the defendants had anything to do with the execution of the note. Under the procedure act of 1887 the defendants were not bound to plead specially, and the plea of non assumpsit placed upon the plaintiff the burden of making out his whole case. The defendant who made the affidavit of defense did not even allege that he was acting as the agent of [648] his codefendants, and if the affi davit had been in evidence it coul,d not have been considered an admission by the other parties. These defendants were not partners, and the declarations of one were evidence against himself alone. When the note was offered in evidence it appeared upon the face thereof that the word “ order ” had been struck out and the word “ bearer ” had been interlined immediately above the other alteration. The negotiability of this note was dependent upon the presence therein of either the word “ order ” or “ bearer,” for there were no other words employed which could give that character: Raymond v. Middleton, 29 Pa. 529. The alterations which clearly appeared on the face of the note were,therefore, in a material part of the instrument. It was not for the court to assume that the striking out of the word “ order ” and the interlineation of the word “ bearer ” were done at the same time. The parties to the contract may have intentionally stricken out the word “ order,” at the time of the execution of the instrument, for the purpose of destroying its negotiability, and the word “ bearer ” may have been subsequently interlined without authority, by some party whose interest it was to make the instrument negotiable and thus deprive the makers of a just defense. The burden was up' n the holder of the note to produce evidence explaining these alterations before the note could be received in evidence: Simpson v. Stackhouse, 9 Pa. 186; Heffner v. Wenrich, 32 Pa. 423 ; Nagle’s Estate, 134 Pa. 31; Nesbitt v. Turner, 155 Pa. 429 ; Gettysburg Nat. Bank v. Chisholm, 169 Pa. 564; Struthers v. Kendall, 41 Pa. 214; Hartley v. Corboy, 150 Pa. 23. The admission of the note in evidence, without requiring of the plaintiff an explanation of the alterations, was clearly erroneous. This action was brought on a negotiable note, and the liability of the defendants to the plaintiff, if any existed, was a necessary part of the original contract. The action was directly upon the contract; John Sunday was dead and this action was brought by his administrator. The defendants made various offers to impeach the contract by the testimony of the several defendants. It is contended that the defendants were competent to testify to occurrences prior to the death of the plaintiff, for the reason that certain disinterested parties were alleged to have been present when the transaction occurred, and [649] that, therefor, the Act of June 11, 1891, P. L. 287 applies. The difficulty with the position of the defendants was that the alleged disinterested parties had not been called as witnesses, and the competency of the testimony was to be determined as' of the time when it was offered: Roth’s Estate, 150 Pa. 261; Thomas v. Miller, 165 Pa. 216; Kauss v. Rohner, 172 Pa. 481. The evidence of the defendants was properly rejected. The judgment is reversed and a venire facias de novo awarded.