Harmony Creamery Co. v. Bickerton

Opinion by Trexler, J., This is a suit on a promissory note. Two questions are involved. The first is, was there a consideration for the giving of the note? The Harmony Creamery Company had a judgment of $4,200 against the Knickerbocker Ice Co. Locke, the attorney for the creamery company, had instructions to issue execution on the judgment. The defendants gave four notes, each of $1,000 to the creamery company as security for the judgment. The consideration for the giving of the notes according to plaintiff’s theory was the agreement on the part of Mr. Locke, acting for the creamery company, not to issue execution on the judgment, in other words, to forbear. The testimony in the case discloses that Locke stated that he was instructed to issue execution; that unless the claim was secured it was his duty so to do; that Bickerton, the defendant, was present to take care of the execution and that the notes were given and accepted by Locke. Certainly it is drawing too fine a line to argue that because the attorney for the plaintiff did not expressly declare that he would not issue execution on the judgment that therefore there was no agreement for forbearance. The learned trial judge submitted the matter to the jury in the following words, “If you find that Mr. Locke in this transaction with Mr. Bickerton took these notes in security for this debt, as I have explained it before in telling you what is meant by that, in consideration of his not issuing an execution, which he says he told them he was going to issue; if he told them that and took the notes in that way, then the plaintiff is entitled to recover.” This was presenting the matter fairly. The point was not elaborated on for the evident reason that the defendant’s version of the matter raised a defense of an entirely different character. He claims the notes were obtained by fraudulent representations. That forbearance is sufficient consideration cannot be [655] questioned: Brice v. Clark, 8 Pa. 301; Giles v. Ackles, 9 Pa. 147; Saalfield v. Manrow, 165 Pa. 114. The verdict of the jury being in favor of the plaintiff settled the question as to what the agreement of the parties was. The other question in the case is as to the application of a payment made after suit brought. One, Rudolph Hoting, who was liable for part of the same debt, to secure which the four notes were given, gave to the plaintiff certain stock of the par value of $2,500, upon the sale of which $2,180 was realized. He gave no directions as to the application of this money. It was received as a general payment on account of the debt. According to Hoting’s version he was not interested as to any particular application of the money as he claimed it was in discharge of his entire liability. The defendant claimed that the amount paid should be credited upon the notes first maturing, the effect of which would be to extinguish the note in suit. There are no other equities involved in this matter. It matters not how we apply the payment, the balance still due would be the same and the defendant’s liability be the same. The only question would be whether part of the debt of $4,200 should be recovered in this suit, or whether the balance must be recovered in a subsequent suit. Thus, the only possible benefit to the defendant would be the delay in payment of the $1,000 involved in the present case. The payment having been made after suit brought plaintiff would still be entitled to its judgment for costs: Wagner v. Wagner, 9 Pa. 214; Summerson v. Hicks, 142 Pa. 344; Groff v. Ressler’s Admr., 27 Pa. 71. On the other hand, the plaintiff in the absence of any direction on the part of the person paying the money had the right to make any application it saw fit: Chestnut St. T. & S. Co. v. Hart, 217 Pa. 506; Risher v. Risher, 194 Pa. 164; Martin v. Draher, 5 Watts, 544; and as was most beneficial to itself and the debt least secured unless to the prejudice of a surety: Pierce v. Sweet, 33 Pa. 151; [656] Bell v. Clark, 38 Pa. Super. Ct. 365; Nat. Dep. Bank of Phila. v. Mawson, 46 Pa. Super. Ct. 85. The plaintiff having brought suit before the payment was made, and its persisting in its demand for payment by pressing its suit was sufficient evidence of its election not to apply the amount paid to the amount in suit. Its officer testified at the trial he could have credited it on the first note but he did not. All the exceptions are overruled and the judgment is affirmed.