Donegal and Conoy Mutual Fire Ins. Co. v. Shaub.

It was not a negotiable note. The makers were J. Edward Shaub, the defendant, and C. H. Brubaker. C. H. Brubaker was indebted to the plaintiff company in the sum of $836.08, and gave this note in payment of that debt.

It appears in the testimony that C. H. Brubaker had one or more notes in the Agricultural Trust Company, which he renewed from time to time; that on the 22nd of November he went to the farm of J. Edward Shaub, whom he found working in a corn field, and said, "I will leave you sign this again." He presented to him a blank note, upon which he put his name, and which he understood was a renewal of another note. John H. Frey, who was present at the time, said he heard Brubaker ask him whether he would sign it again. This testimony was uncontradicted. C. H. Brubaker, one of the makers, took the note and delivered it to the Donegal and Conoy Mutual Insurance Company in payment of his indebtedness to it.

As this note is not a negotiable note (see Donegal and Conoy Mutual Fire Insurance Co. v. Shaub and Brubaker, 35 L. L. R. 305), and the plaintiff took it for an existing debt, it took it subject to any defense that could be made against it, and it may be impeached for fraud in the making or procurement of it, or in its use.

The request of Brubaker to the petitioner to sign the note again was in substance a request to renew an old note. It is the usual way of referring to a renewal note to speak of it as a continuance of the original. This is done because the debt is continuous, and the series of notes which represent it are also so regarded. When the petitioner, therefore, was asked by Brubaker to sign it again, or said he would permit him to sign it again, he was justified in understanding that Brubaker was asking to renew a note then in existence. If Brubaker's intention was to use it for another purpose than what he led the petitioner to believe, and which he had reason to understand it was to be used for, it was a fraud upon the defendant in the procurement of the note, and if Brubaker did actually use it for another purpose it was a misappropriation of it. This would certainly be a defense to the payment of the note in Brubaker's hands, and as the plaintiff claims under him, the same defense can be made against it.

We are of the opinion that under the evidence here, the verdict in this case should have been for the defendant, and we, therefore, make absolute the rule for a new trial. Rule made absolute.

ADDITIONAL C. P. OPINIONS.

Saturday, July 3, 1920.

By JUDGE LANDIS:

Eshbach & Eshbach v. Hoffmaster. Rule for judgment for want of a sufficient affidavit of defense discharged.

Eshbach & Eshbach v. Hoffmaster. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment for plaintiffs for $180.37.

Eshbach & Eshbach v. Kirchner. Rule for judgment for want of a sufficient affidavit of defense discharged.

Court of Common Pleas of Lancaster County

New York and New Jersey Produce Co. v. Burkholder. Consignment with draft and bill of lading-Resale on refusal-Time of taking title-Sale for freight and demurrage Suit for price paid-Affidavit of defense.

On suit brought to recover the amount paid on a draft with bill-of-lading attached covering a consignment of potatoes which had been accepted by the plaintiff subject to a rebate on the price, after refusal by a prior consignee, and which had been sold for freight and demurrage before being lifted by the plaintiff, an affidavit of defense is sufficient which avers an earlier date of sale than that fixed by the statement, and that the plaintiff's title to the potatoes had not been divested by the railroad company previous to the payment of the draft, although the time was not designated precisely.

Rule for judgment for want of a sufficient affidavit of defense. December Term, 1919, No. 80.

L. R. Geisenberger, for rule.

John A. Coyle, contra.

April 17, 1920. Opinion by LANDIS, P. J.

On September 4, 1919, the defendant shipped, via The Maryland and Pennsylvania Railroad Company, to New York, to the order of himself, in care of the Pennsylvania Railroad Company, car No. 119,412, containing a lot of potatoes. On September 6, 1919, he drew a draft, for the amount of $1,269.60, through the Conestoga National Bank of Lancaster, Pennsylvania, on Cuomo & Defoe, and attached to it the bill of lading, to be released upon the payment of the draft. When the draft was presented to Cuomo & Defoe, they refused to accept it, whereupon the defendant directed his agents, Withington & Company, to sell the potatoes. The New York and New Jersey Produce Company, Inc., agreed to purchase them at $2.25 per cwt., and the difference between the price of the re-sale and the amount of the draft was about $400.00. On September 25, the New York and New Jersey Produce Company, Inc., was requested by Withington & Company to purchase the bill-of-lading and take up the draft, promising that they would pay the difference between the draft and the purchase price. They also notified the plaintiff that they had received a check from the defendant for the amount of the said difference. On September 26, 1919, the plaintiff paid to the National Bank of Commerce the sum of $1,269.60, and lifted the bill-of-lading and the draft. On the same day, it presented to the Pennsylvania Railroad Company the bill-of-lading and demanded possession of the potatoes, but it was then informed that they had been previously sold for demurrage and freight charges. The plaintiff, therefore, brings this action to recover the amount of the draft thus paid by him.

The affidavit of defense denies that the sale was made on September 25, 1919. It alleges that the plaintiff purchased the potatoes on September 22, 1919, and then obtained title to them; that the defendant

VOL. XXXVII, No. 40

New York and New Jersey Produce Co. v. Burkholder. sent to New York, on September 23, the check for $400.00, as agreed upon, which check was received there on September 24. It further asserts that the plaintiff's title to the potatoes had not been divested by the Railroad Company previous to the payment of the draft. The question, therefore, seems to turn upon the point as to whether or not the Pennsylvania Railroad Company had already sold the potatoes when the plaintiff acquired title, or whether or not he did acquire title at any time to them.

I am satisfied that, if the plaintiff paid the draft and lifted the billof-lading after the railroad company sold the potatoes, then the money ought to be returned, for the arrangement between the parties was not, in my judgment, consummated until the defendant furnished the $400.00 and the draft was paid. Until that time the contract was executory, and the title to the goods shipped remained in the original

owner.

The trouble, however, which I at the present time see is that, although neither the statement nor the affidavits of defense designate this time precisely, it is averred by the defendant that the plaintiff's title had not been divested when the potatoes were sold, by the railroad company. This allegation may seem somewhat evasive, but it apparently raises an issue of fact on this important point, and, while such issue is not necessarily for a jury, it is one which will fix the exact status of the parties. Because of this, the Court feels that it cannot at this time enter judgment, even though, when the facts develop, it may be necessary to give binding instructions.

For these reasons, the rule for judgment is now discharged.
Rule discharged.

Court of Common Pleas of Lancaster County

New Holland Natl. Bank v. Weaver's Executor.

Contract made on Sunday-Endorsement of promissory note.

An endorser on a promissory note is not relieved from liability because the endorsement was signed on Sunday where the note was not delivered to the holder bank until Tuesday.

The case is not altered by the fact that the note was not dated when it was endorsed, and the date of the expiration of a former note of which it was a renewal being a Sunday, was inserted by a clerk at the bank when it was received there.

A contract made on Sunday is not void if it is not completed until a later day. An instrument which does not take effect until delivery is not void because signed on Sunday.

Rule for judgment for defendant n. o. v. June Term, 1919, No. 47.

Chas. F. Hager and Frank S. Groff, for rule.

M. G. Schaeffer, contra.

July 3, 1920. Opinion by HASSLER, J.

New Holland Natl. Bank v. Weaver's Executor.

We are asked to enter judgment for the defendant in this case

n. o. v.

The undisputed facts as shown at the trial are as follows: Prior to April 28, 1918, the plaintiff was the holder of a note for $2,800.00, of which D. M. Gehman was the maker and Mrs. E. A. Weaver, defendants' testatrix, payee and endorser. It came due on April 28, 1918, which was a Sunday. On April 30, 1918, the note, which is the subject of this suit, was delivered to the plaintiff bank to renew the one then held by it. It was not dated, and the clerk who received it inserted the date when the first note came due, viz., April 28, 1918, which, as we have said, was a Sunday. The note was brought to the home of Mrs. E. A. Weaver on Sunday, April 28, 1918, by Mrs. Emma Gehman, and endorsed by her on that day. The relationship between Mrs. Emma Gehman and the maker of the note does not appear. was taken away from Mrs. Weaver's house by Mrs. Gehman.

It

The reason given why judgment should be entered for the defendant n. o. v. is, that the note is void as to Mrs. E. A. Weaver because it was endorsed by her on Sunday.

It is true that a contract made on Sunday is contra bonos mores, and the law will not help in its execution, but when anything is necessary to complete a contract it is not rendered invalid because part of it was made or done on a Sunday. Thus in Com. v. Kendig, 2 Pa. 448, where the surety on a justice's bond signed it on Sunday, but it was not approved by the Court nor delivered to the prothonotary until Monday, the contract was not completed until Monday, and it was held to be binding upon the surety. In Sherman v. Roberts, 1 Grant 261, a bond was signed by the surety on Sunday, but it was not delivered until Monday, and it was decided that the surety was bound. In Beitenman's Appeal, 55 Pa. 183, it is decided that an instrument which does not take effect until delivery, is not void because signed on Sunday. See also Stevens v. Hallock, 7 Kulp 260, and Dowd v. Goodman, 18 Lack. 317.

The note in this case was not a complete contract until it was delivered to the plaintiff bank, and as that was done on Tuesday, April 30, 1918, the fact that the defendants' testatrix signed it on Sunday did not relieve her from liability on it. Nor does the fact that the clerk in the plaintiff bank inserted the date, when the prior note came due, being a Sunday, and not the date when it was received at the bank, relieve the defendants' testatrix from liability, as it is a fact, proven at the trial, that it was not delivered to the bank on the date appearing in it, but on Tuesday, April 30, 1918. The error in the date was a matter that could be and was properly explained.

We are of the opinion that the defendants' testatrix was bound by the note for the reasons given, and we therefore discharge the rule to show cause why judgment should not be entered in favor of the defendant n. o. v.

The rule for a new trial raises practically the same question, and we discharge that rule also.

Both rules discharged.

Court of Quarter Sessions of Lancaster County

In re Liquor License of Leon R. Miller.

Return of money paid for liquor license-Act of May 8, 1919.

Under the Act of May 8, 1919, P. L. 167, the Court will on petition order the State Treasurer and the County Treasurer to repay to a licensee the portion of the liquor license fees paid by him for the period during which he was prevented from carrying on his business by the order of the President and the Secretary of War after July 1, 1919.

Rule to refund liquor license money.

Oliver S. Schaeffer, for rule.

Bernard J. Myers, Deputy Atty. Gen., and J. Roland Kinzer, County Solicitor, contra.

July 3, 1920. Opinion by HASSLER, J.

This is an application under the Act of May 8, 1919, P. L. 167, to refund to the petitioner the portion of the license money paid for that part of the year beginning April 1, 1919, during which he was prevented from carrying on his business as a wholesale liquor dealer in the City of Lancaser by order or regulation of the President of the United States, issued under authority of Act of Congress. We have fully discussed the right of a petitioner under these circumstances to recover back such portion of the license fees paid in the case of In re Wholesale Liquor License of Samuel R. Goodman, 37 L. L. R. 129, and there decided that a licensee, who had paid the license fees and been prevented by order of the President or Secretary of War from carrying on the business, might recover back the portion of the license fees paid for the period during which he was thus prevented. We are satisfied, therefore, that the petitioner here is entitled to the relief prayed for. It appears that he was prevented from carrying on business on and after July 1, 1918, by order, or regulation, of the President of the United States, issued under Acts of Congress of August 10, 1917, October 3, 1917, and November 21, 1918, that he paid license fees to the amount of $291.67 to keep his license alive after that date. This is the amount, therefore, that he would be entitled to be repaid.

We, therefore, order J. H. Rathfon, Treasurer of Lancaster County, to pay to Leon R. Miller, the petitioner, the sum of $291.67, being the proportion of license fees paid by him for the time he was prevented from carrying on the business for which he was licensed by order, or regulation, of the President of the United States, or Secretary of War, and we further determine that of this amount $290.21 has been paid into the State Treasury, and we, therefore, order Harmon M. Kephart, State Treasurer of Pennsylvania, to return to J. H. Rathfon, County Treasurer of Lancaster County, the said sum of $290.21. Both the County Treasurer and State Treasurer were represented by counsel in the hearing of this case.