Luzerne County National Bank v. Lowenstein

Opinion by Trexler, J., The Luzerne County National Bank discounted for C. D. Hershberger, the maker, a promissory note for $700 bearing date October 7, 1912, payable two months after date to the order of E. Lowenstein and by him endorsed. The endorsement is not denied. The date of the note had been changed, the original date having been August 19, 1912, the inserted date being October 7,1912. At the first trial, plaintiff declared on the note as of the altered date, and the trial judge instructed the jury that if they found that the note had been altered, their verdict must be for the defendant. The jury found for the defendant. Although the notes of the first trial are not [342] before us, it appears that the trial judge suggested to the plaintiff that he amend his statement so as to come within the provisions of the 124th Section of the Act of May 16, 1901, P. L. 194. This suggestion the plaintiff did not see fit to adopt. Upon an application for a new trial, the court upon its own suggestion, at least nothing to the contrary appears in the record, granted a new trial-upon condition that the plaintiff amend its statement, so as to declare upon the note according to its original tenor. The court after stating that in his opinion the verdict for the defendant would not prevent another suit on.the note as originally given, proceeds, “It will be in the interests of the speedy administration of justice to permit an amendment of the declaration and a trial in which the parties’ special rights under the statute may be ascertained; but the fact that the note was actually and fraudulently altered having been found by a jury after a full and fair trial must be accepted as settled by that verdict.” This action on the part of the court is the basis of the first assignment of error. “The granting or refusing of a new trial except for causes like errors of law by the judge or misconduct of the jury, Avhere it may be matter of right, is an exercise of judicial discretion by the court in furtherance of right- and justice according to the circumstances of the case. Hence it is Avell settled that the court may impose terms upon either or both of the parties as conditions of the grant or refusal and the latitude allowed to the discretion of the court to this end is very great” ; Welsh v. Dusar, 3 Binn 329; Parshall v. Conklin, 81* Pa. 487; Stauffer v. Reading, 206 Pa. 479; Wirsing v. Smith, 222 Pa, 8. The court took the vieAV that it should not be necessary in every case of an altered note, that tAvo suits be brought, one to fix the fact that the note had been altered and the other to settle the other defenses to the note. Whether this be correct or not we do not think the court abused its discretion in granting the new trial. [343] It might well be argued that the judge should have placed the costs of the first trial on the plaintiff, but as stated in Hileman v. Hileman, 172 Pa. 323, “This was in the discretion of the court below.” The first assignment is overruled. The court did not submit to the jury the question whether the bank was put upon notice by the condition of the note that it had been altered. The court in its charge assumed as a fact that the appearance of the note was not such as to invite inquiry. We quote from the charge alluding to the appearance of the note. “Now that proposition I propose to affirm as a matter of fact because, and I think you will, when you see the note, if you have not already seen it, agree with me that the evidence of alteration in the date of that note is not apparent even on close scrutiny, and the appearance of the note in the mind of the court in our opinion is not such as should have put the plaintiff on notice of the alteration ; and if I were to submit that question to you and your verdict against the plaintiff should be based upon your answer to that question, I could never sustain the verdict, and therefore I am assuming that to be the fact that the alteration was not such as to put the plaintiff on notice.” This statement of the trial judge was not specifically challenged by the defendant. There was nothing in the appearance of the note to indicate that the date had been altered. The date October 7,1912, was impressed with a rubber stamp, and it was followed by the printed numeral 19 and the figure 12 written in ink. It is the duty of the court to see that the testimony before it “has at least a natural and reasonable tendency to sustain the allegations in support of which it is introduced, that it is of such a character as to warrant an inference of the fact to be proved and amounts to something more than a mere basis for conjecture or vague speculation. If there is no sufficient evidence to justify an inference of the disputed fact the court has the right and it is its duty to withhold it from the jury”: Ed [344] wards v. Meyers, 227 Pa. 584; Battles v. Laudenslager, 84 Pa. 446. Thus in Corn Exchange Nat. Bank v. Nat. Bank of Republic, 78 Pa. 233, it was held that the fact that the check was of different color from those usually drawn by the firm and was not perforated was too unimportant to justify a submission of the question of the bank’s negligence to the jury. So in Girard Trust Company v. Boyd, 45 Pa. Superior Ct. 285, where the question of the bank’s negligence in taking an altered check was raised this court said, “there was nothing on the face of the check to attract the attention of the officials of the bank through which it passed and that it would not be discoverable that the check had been raised except by the use of a strong magnifying glass ......we are utterly at a loss to understand how it can be said that the trust company was guilty of negligence.” We may remark in passing that the payee’s title of the note in question was not defective. He obtained it in proper manner for the purpose of raising money by its discount. The only defect in the instrument was its altered date. The assignment is overruled. The next assignment is as to notice of the dishonor of the note. It Avas not a foreign bill of exchange and therefore protest Avas not necessary: Act of May 16, 1901, P. L. 194, Section 152. The court excluded the notarial certificate deeming a notice of the protest of a note of the date of October 7th, the altered’date, as insufficient notice of dishonor of a note Avlxose original date Avas August 19th. Irrespective of this there Avas testimony that on the very day the note became due according to its original tenor, the defendant at the close of banking hours called at the plaintiff’s bank and was informed that the note in qiiestion had been presented by the notary and had not been paid. There Avas other evidence corroborating this. The question of notice Avas very properly submitted to the jury as there' was sufficient testimony to Avar rant' its submission. The judgment is affirmed.