Liab v. Kozuhowski

Opinion by Rice, P. J., This is an appeal by defendant from judgment for want of a sufficient affidavit of defense in an action of assumpsit [53] on two promissory notes drawn by the defendant to his own order and indorsed by him in blank, which, it is alleged in the statement of claim, were given by the defendant to the plaintiff on the day of their date. The statement further avers that the plaintiff is the bona fide holder, for value, of the notes before maturity, and the present holder thereof. The part of the affidavit of defense material upon the present inquiry is, substantially, that the notes were executed and delivered by the defendant to the plaintiff for the uses and benefit of a certain life insurance company, and for the purpose of having them delivered by the plaintiff to that company; that said company is the owner and holder of the notes; that the plaintiff has no right, title, or interest therein; and that the defendant is not indebted to the plaintiff in the sum claimed by the latter or in any sum whatsoever. Under the negotiable instruments act of May 16, 1901, P. L. 194, which in these particulars was declaratory of the then existing law, the holder of a negotiable instrument may sue thereon in his own name (sec. 51), and every holder is deemed, prima facie, to be a holder in due course (sec. 59); but, as between the immediate parties, delivery may be shown to have been conditional or for a special purpose only (sec. 16). And it needs no argument or citation of authorities to show that a mere messenger intrusted by the maker with a note to be delivered to a third person, does not eo instanti become a holder who can bring suit in his own name against the maker. This is not claimed. It is argued, however, that the notes, being indorsed in blank, could be negotiated by delivery (sec. 34) and therefore it is a supposable case that the insurance company transferred them in that way to the plaintiff. But this is not alleged in the statement of claim; the fair meaning of the statement is, that the notes were delivered to the plaintiff unconditionally by the defendant and that he got title thereby. Moreover, such supposition would be unwarrantable in the face of the defendant’s averment that the plaintiff is not the holder of the instruments, [54] but the insurance company is.. In short, the allegation of the statement of claim as to the plaintiff’s title is met with an equally explicit denial, accompanied by an unqualified assertion that the person for whose benefit and use the notes were drawn is the owner and holder of them. And these allegations are supported by a statement of the circumstances under which the plaintiff obtained manual possession of the notes. We have given full consideration to the appellee’s argument, but we cannot agree with the learned counsel in his conclusion that the affidavit leaves to inference and speculation matters which bear directly on the defense and admits of several constructions. The question is not whether the defendant is liable on the notes to the lawful holder of them, but whether the plaintiff is such holder. We are of opinion that the averments of the affidavit of defense, as to this essential element of the plaintiff’s statement, are sufficient in form and substance to prevent summary judgment. See Hatboro National Bank v. Stevenson, 33 Pa. Superior Ct. 144; Eliel v. Chamberlain, 48 Pa. Superior Ct. 610, and cases there cited. The judgment is reversed and a procedendo awarded.