Cummings v. Boyd

1. While the rules of special pleading require pleas to he single, yet a party is not precluded from introducing several facts into one plea provided they all tend to produce but a single issue. 2. A special plea averring fraud is not bad because it amounts only to the general issue, for strictly the allegation of fraud can only be introduced through or by means of special pleading. 3. The holder of an accommodation note, pledged as collateral security for an antecedent debt, is not a purchaser for value, and the note in his hands may be impeached for fraud m its making or procurement. 4. Judgment in the court below having been entered for the plaintiff upon a demurrer to along and complicated special plea, the Supreme Court reversed the same and entered judgment for defendant. Upon a rule to show cause why this judgment should not be set aside: Held, that owing to the peculiar circumstances of this case the judgment of the court below is reversed, and the record ordered to be remitted to determine whether a new trial shall be granted, and to make such order in the premises as to justice may belong. 5. Per Curiam. — Ordinarily a party who rests his cause upon a demurrer when he might have had a trial upon the facts of the plea, and then the benefit of the legal question, will not be helped out of the position he has voluntarily .assumed.

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 74. Assumpsit brought by James W. Boyd, the holder of a promissory note, against Bobert D. Cummings, who endorsed said note for the accommodation of Isaac Barton & Son, the makers. The pleas were non-assumpsit, payment with leave, &c., and the case proceeded to trial, when at bar the defendants filed the following special plea:— “And now, on motion of J. M. Moyer, the defendant amends his pleadings as follows, by leave of the court first had and obtained, for a further plea in that behalf, sayeth: The said plaintiff ought not to have or maintain his aforesaid action, because he sayeth that the note on which the above action is brought was obtained from the defendant by the said Barton through misrepresentation and fraud; that the said Barton, at and before the signing of said notes by this defendant, represented and pretended that he was the owner in his own right of goods and chattels and property of the clear value of over one hundred thousand dollars; that he was worth over one hundred thousand dollars above all his liabilities, and that upon the faith of said representations and pretences the said defendant, then and there, signed said note. Also, that defendant signed said note in blank, under the express promise and representation by the said Barton, that it was to bo a note for six hundred dollars, and that the said Barton afterwards filled up said note for the sum of-fourteen hundred 'and thirty-seven dollars, in violation of his said contract with the defendant; also, that the plaintiff is holding said note only as collateral security for a pre-existing debt, and that he has not delivered up to the said Barton the evidence of said indebtedness, but still holds and retains the same against the said Barton; also, that the said plaintiff received into his possession the said note, as a note-broker, from the said Barton, to sell the same in the market, and was to return to the said Barton the proceeds thereof; that he advanced five hundred dollars on account of said note to the said Barton, and that that is all the consideration received by the said Barton from the said Boyd; and that the defendant has paid to the said Boyd the said five hundred dollars in full accord and satisfaction of said note; also, that the said plaintiff had knowledge of the insolvency of the said Barton at the time of the delivery to him of said note by said Barton; that at the time of the aforesaid representations and pretences by the said Barton, he, the said Barton, was wholly insolvent and unable to pay his debts, and that he was not then and there the owner in his own right of property, goods and chattels of the value of over one hundred thousand dollars above his liabilities.” The plaintiff demurred to this plea, and set forth the following among other causes of demurrer: That said plea amounts to the plea of non-assumpsit; that it is double and contradictory in that it sets forth that the defendant made the endorsement sued on upon the representations of one Barton that he was the owner of property of great value; that the said endorsement was made in blank, on the representation and agreement that it would be filled up for the sum of $600; that it sets up an alleged accord and satisfaction; that said plea is further double and contradictory in that it avers that plaintiff received said note only as collateral security for a preceding debt; that he advanced $500 on the faith thereof; and that the plaintiff received said note for the purposes of sale, and to return the proceeds thereof to said Barton; that said plea does not set forth any fact invalidating his said contract of endorsement in the hands of a bond fide holder for value, and does not show that the plaintiff was not such holder, but, on the contrary thereof, distinctly shows that the plaintiff received said note for full value; that said plea does not show that said alleged representations of said Barton, respecting his property, were known by said Barton to be false, and were made with the purpose of inducing said defendant to give said endorsement; that said plea lacks certainty of time and place, in that the time at which some of the alleged facts therein set forth is given, nor are any of said facts alleged to have happened at any definite or specific place. Without a decision upon the questions raised by the demurrer the trial proceeded, and a verdict was rendered for the plaintiff for $1030.34, the amount claimed. The court subsequently, upon argument, sustained the demurrer, stating that they found the plea sufficient in form, but insufficient in substance, and entered judgment in favor of the plaintiff on the demurrer. The defendant then took this writ, alleging this action of the court for error.