Opinion
January 10, 1935.
February 4, 1935.
Negotiable instruments — Evidence — Possession of instrument — Prima facie right in holder — Mortgage as additional security or in lieu of note — Submission to jury.
1. The possession of an instrument in writing for the payment of money affords proof, prima facie, of the right in the holder to recover upon it according to its terms. [432]
2. On the trial of a proceeding on a judgment note, where the defense was that the note was a temporary arrangement, pending the execution and delivery of a mortgage upon real estate owned by one of the defendants, the question of fact whether the mortgage was given as additional security for the note, or in lieu thereof, was properly submitted to the jury. [432-3]
Argued January 10, 1935.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 159, Jan. T., 1935, by defendants, from order and judgment of C. P. No. 3, Phila. Co., Dec. T., 1930, No. 12080, in case of Carl F. Koenig v. Curran's Restaurant Baking Co. et al. Order and judgment affirmed.
Trial of issue after judgment opened. Before LEWIS, P. J., specially presiding.
Verdict and judgment for plaintiff.
The facts are stated in the opinion of the lower court as follows:
On February 3, 1931, the plaintiff caused judgment to be entered on a note made by the defendants for $20,000, dated April 16, 1929, payable one day after date. Thereafter the judgment was opened.
Upon the trial of the case the plaintiff proved the execution and delivery of the note, the consideration therefor, offered the note in evidence, and rested. The note was in his possession at the time judgment was entered.
"The possession of an instrument in writing for the payment of money affords proof, prima facie, of the right in the holder to recover upon it according to its terms. The holder is not required to prove that it has not been paid. His case is made by the production of the instrument in the first instance, and the burden of showing payment is on him who alleges it": Whitney v. Hopkins, 135 Pa. 246, 255.
The defendants, not disputing the fact that the plaintiff advanced the sum of $20,000 to the corporation in which they were interested, and not disputing that $19,000 remained unpaid, defended on the ground that the note was a temporary arrangement, pending the execution and delivery of a second mortgage upon Philadelphia real estate, owned by the corporation defendant, and encumbered by a first mortgage in the sum of $80,000. The second mortgage was not executed until December 4, 1930. The plaintiff contended it was given as additional security for the note; the defendants that it was given in lieu of the note.
During the progress of the trial every doubt as to admissibility of evidence offered on behalf of the defendants was resolved favorably to them, to permit adequate presentation of the defense. The question whether or not the second mortgage was given as additional security for the note, or in lieu thereof, was manifestly for the jury to determine. The questions of fact were submitted to the jury upon a charge, with which counsel for the defendants expressed his satisfaction. The charge, in fact, favored the defendants rather than the plaintiff.
The jury resolved the questions of fact submitted to them in favor of the plaintiff, and we see no reason to disturb the finding.
Although the trial judge did not sit with the court in banc when the motions for new trial and judgment n. o. v. were argued, the record has been reexamined, and briefs of counsel studied, and the action of the court in banc, refusing new trial and judgment n. o. v., is concurred in.
Defendants appealed.
Errors assigned, inter alia, were refusal of points for charge, quoting record.
Thomas O. Haydock, Jr., for appellants.
George T. Steeley, with him Wm. A. Carr and Sidney L. Krauss, for appellee.
The order of the court below refusing judgment non obstante veredicto and a new trial, and the final judgment are affirmed on the opinion of Judge ROBERT R. LEWIS, specially presiding at the trial of the case.