City Trust & Savings Bank v. Schwartz

Opinion bt Rice, P. J., This was an action of assumpsit by the indorsee against the maker of a check to recover the amount. [649] The case is before us by appeal from judgment for want of a sufficient affidavit of defense. The plaintiff alleged in its statement of claim, inter alia, that the defendants drew their check on a Philadelphia bank for the payment of $492.33 to the order of one J. A. Bauman and caused'it to be delivered to him; that two days later Bauman presented the check to the plaintiff at its banking house and requested the plaintiff to pay him the amount of the same, which request the plaintiff complied with by paying “in cash to the said J. A. Bauman the amount of the said check, viz: $492.33, and he endorsed and delivered the said check to the plaintiff;” that the plaintiff caused the check to be duly presented to thé drawee, and upon payment being refused, to be duly protested. All -of these allegations, excepting as to the indorsement of the check by J. A. Bauman, were expressly admitted in the affidavit of defense. As to that the defendants averred “that the said check was not endorsed by the said J. A. Bauman, to whose order it was drawn, but that one Edward Bauman, without authority from the said J. A. Bauman, wrote on the said check the name of J. A. Bauman, and the said bank wrongfully, and in fraud of the defendant’s rights, took the said check thus endorsed, without the order or authority of the said payee.” The fact that Edward Bauman, without authority from J. A. Bauman, wrote the latter’s name upon it must be taken for verity. But inasmuch as they are not denied, either specifically or by necessary implication, the allegations of the statement that J. A. Bauman presented and delivered the check to the plaintiff with his name indorsed on it, and that at his request, the plaintiff paid him the money,' must also be taken as admitted. There was therefore a ratification of the unauthorized act of Edward Bauman, and this being so, the fact that the name of the payee was not written by bim but by Edward Bauman, does not support the allegation that the plaintiff, “wrongfully and in fraud [650] of defendants’ rights” took the check or the allegation that the plaintiff is not a bona fide holder. The other ground of defense set up in the affidavit, is, in substance, that the check was obtained by Bauman by false and fraudulent representations as to his financial standing, that the defendants gave the check relying on the truthfulness of these -representations and that the plaintiff was familiar with Bauman’s failing condition at the time it cashed the check. The representations and their falsity are set out with particularity in the affidavit. But it is not perceived what materiality the averment of the plaintiff’s knowledge of Bauman’s failing and insolvent condition has, especially in the absence of an averment that the plaintiff took the check with knowledge- of the false representations he is alleged to have made to the defendants. Nor is it apparent that the averments that the defendants gave the check relying upon the truthfulness of Bauman’s representations as to his financial condition, and that these representations were false, constitute a defense against the holder, in the absence of averment as to the consideration for the check. The giving of a check does not raise the presumption of a debt owing by the payee to the drawer, or of a loan by the latter to the former; the presumption is that it was given in payment of a debt or for money received at the time: Gettysburg National Bank v. Kuhns, 62 Pa. 88; Lowrey v. Robinson, 141 Pa. 189; Yeager’s Estate, 31 Pa. Superior Ct. 202. A mere reference to this well-settled principle is sufficient to distinguish the case from Eliel v. Chamberlain, 48 Pa. Superior Ct. 610, which was an action by the indorsee against the maker of a promissory note. If the check in suit was given as a loan by the defendants to the payee these representations would be material, and doubtless they would be under other special circumstances. But if it was given in payment of a debt or for money received at the time, they would not be material. Hence the importance of setting forth the [651] consideration at the foundation of the transaction. While technical precision in an affidavit of defense is not indispensable, yet, it is well settled, the affidavit must be complete and explicit in setting forth the facts constituting the essential elements of a valid defense, legal or equitable, and their omission cannot be supplied by possible inferences from facts not stated: Class v. Kingsley, 142 Pa. 636; Myers v. Kipp, 20 Pa. Superior Ct. 311. It is apparent from what has been said that, in order to show the relevancy and materiality of the false representation, the consideration for which the check was given should have been alleged, and not left to surmise. If it was given under circumstances and upon a consideration which made the representations material and relevant, the facts constituting this vital element of the defense, could and presumably would have been stated. As they were not the court was right in adjudging the affidavit to be insufficient. The judgment is affirmed.