Troop v. Franklin Savings & Trust Co.

Opinion by Me. Justice Simpson, In this suit, judgment was entered for the defendant bank, upon questions of law raised in its affidavit of defense, and plaintiff now appeals. Under such circumstances, every relevant fact sufficiently averred in the statement of claim, every inference fairly deducible therefrom, and every fact of which the court can take judicial notice, must be accepted as true; but all others must be treated as nonexistent: Robert Grace Contracting Co. v. Norfolk & Western Ry. Co., 259 Pa. 241 .

Plaintiff averred in his statement that the bank held two overdue notes upon which he was liable. On one he was the maker, on the other he was but an endorser; he had given the bank certain stock as collateral security for the payment of the latter note, and himself held, as security for his endorsement, a quantity of personal property of the maker. Of this latter fact, he had given notice to the bank. Some months later, an agreement was entered into between the maker of this note and the bank, whereby it agreed to refinance his entire indebtedness, to release plaintiff from liability on the endorsed *21 note, and to return to plaintiff his stock, upon payment of the balance due on his individual note. Plaintiff was not a party to this arrangement, but, shortly thereafter, was informed of it by the cashier of the bank. So far as appears, plaintiff made no further inquiry of the bank, but, of his own motion and without its knowledge, sold the personal property, which he held as security against his endorsement, and paid the proceeds to the maker of that note. Evidently the refinancing did not take place; it is not stated whose fault this was, and hence it must be presumed that the bank was not to blame. Plaintiff paid the balance due on the note of which he was the maker, demanded of the bank the return of his stock, held as collateral for the endorsed note, and, this being refused, brought the present .suit to recover the value of the stock.

He alleges three reasons why the judgment should be reversed: (1) That the agreement made by defendant to return plaintiff’s stock when he paid the balance due on his individual note is binding; but, this note being then overdue, that promise, if made, was without consideration, and hence is not enforceable: Erny v. Sauer, 234 Pa. 330 . (2) That he was a third party beneficiary in the agreement between the bank and the maker of the note. That he would have benefited if the refinancing had taken place, is undoubtedly true; but there is no averment that the bank was to surrender its collateral, if, without fault on its part, the refinancing did not take place. (3) That the bank is estopped to deny plaintiff’s right to do as he did. If plaintiff had told the bank he intended to sell the collateral he held to secure him on his endorsement, and to give its proceeds to the maker of that note, and the bank had not objected, there might be some ground for the alleged estoppel. This is not averred, however. Evidently plaintiff was too sure the refinancing would be accomplished; having taken the risk of this, he must bear the resultant loss, and cannot *22 impose it on the bank, which, so far as appears, was in no way to blame.

To avoid misunderstanding, it should be added that appellant does not complain of the failure of the court below to give him leave to' amend his statement of claim, and hence we have not considered whether this should have been done: See Shifferstine v. Sitler, 264 Pa. 290 ; Morris & Bailey Steel Co. v. Bank of Pittsburgh, 277 Pa. 81 .

The judgment of the court below is affirmed.