Colonial Bank & Trust Co. v Linton et al. Bills and Notes—Assumpsit—Holder in Due Course-Evidence—Jury. In an action on a promissory note notwithstanding the fact that the holder shows that he is a holder in due course and no evidence is present to show to the contrary, yet it is a question of fact, and in the establishing of the same, the credibility of the witnesses is a question for the jury to determine, and the court cannot give binding instructions in favor of the plaintiff. Motion for Judgment N. O. V. and New Trial. No. 1173 July Term, 1913. C. P. Allegheny County. Joseph Stadtfeld, for plaintiff. Before KLINE, HAYMAKER and CARPENTER, JJ. KLINE, J., December 23, 1919.--This case comes before us upon motion for judgment non obstante veredicto and for new trial. This trial was upon four promissory notes, each a separate action, but tried at the same time. Three of the said notes were made payable to E. W. Mallohan, and delivered to the plaintiff; and the fourth note was made payable directly to the plaintiff bank, and were given to the plaintiff corporation as collateral security of an existing indebtedness of E. W. Mallohan to the bank. The Court held that as to the notes of $1,000.00, $2,000.00, and $250.00, which were not made payable directly to the bank and upon proof of the same by the cashier, that they were holders in due course, and in the absence of any testimony to the contrary, gave binding instructions for the plaintiff; but as to the note of $2,465.00, made payable directly to the bank when Mr. E. W. Mallohan was a member of the board of directors, left the question, of the bank being a holder in due course, for the jury, that the jury was to determine whether or not the bank was put upon special inquiry when the note was discounted or held as collateral security for one of the board of directors of the corporation. It seems by the ruling of the Supreme Court in the case of the Second National Bank v Hoffman, 229 Pa., 433, that notwithstanding the fact that the holder of a note shows that he is a holder in due course and no evidence is present to show to the contrary, yet it is a question of fact, and in the establishing of the same, the credibility of the witnesses is a question for the jury to determine. In other words, the jury must pass upon a self evident fact. The defendant here asks for judgment non obstante veredicto upon reasons which were not matters of evidence, and even if they were, would be a question of fact only for the jury to determine according to the ruling of the Court in the above cited case. ORDER And now, to wit, this 23rd day of December, 1919, the motion ex parte defendant for judgment non obstante veredicto is refused and new trial is ordered. Matthews et al. v Rush et al. Costs Appeals--Paper Books-Judgment in Favor of Appellant-Affirming Lower Court. Defendants were held liable for the cost of printing the paper books in an appeal to the Supreme Court, where plaintiffs recovered a verdict below but appealed. The lower court was affirmed and the judgment in favor of the plaintiffs stood as the final judgment in the case. The fact that the defendants were the victors in the particular question raised on the appeal would not exempt them from the costs, as the plaintiffs got the final decision in their favor. The words "finally losing the cause" in the Act of 1897, and "final decision" in the Act of 1907, refer to the state of the record of the court in which the case was tried, which puts an end to the action. When no further question is reserved for future determination except such as may be necessary to carry the final judgment into effect. Appeal from Taxation of Costs. No. 273 August Term, 1917. C. P. Westmoreland County. John E. Kunkle, for plaintiffs. Gaither & Whitten, for defendants. SNYDER, J., December 15, 1919.-The plaintiffs in this case recovered a verdict against the defendant in the Court of Common Pleas of Westmoreland County in the sum of $2,201.19. The defendants were apparently satisfied with this verdict. The plaintiffs appealed to the Supreme Court. In that court all the assignments of error were overruled and the judgment of the Court of Common Pleas affirmed. In taxing the costs the Prothonotary disallowed the claim of the plaintiffs for the cost of this appeal, including the cost of printing plaintiff's paper book. An appeal was taken from the decision of the Prothonotary. The sole question now before this court is whether the plaintiffs are entitled to these costs. The Act of 1907, P. L. 83, provides: "In all cases * * * where an appeal is taken from any judgment to the Supreme Court the party in whose favor the final decision is rendered shall be entitled to charge and collect from the losing party as part of the costs such amount as shall have been expended for printing paper books upon said appeal." This case, therefore, turns upon the construction of the words: "the party in whose favor the final decision is rendered." The defendants contend that this means the final decision in the appellate courts. However, we think this question has been frequently decided by our Superior Court. In Henning v Keifer, 43 Pa. S. C., 177, the judgment in the lower court was for treble damages. Upon an appeal the assignments of error were sustained and the record remitted with instructions to enter judgment for the actual damages as found by the jury. The judgment in the Superior Court was, therefore, in favor of the appellant and yet the appellant was not permitted to collect the costs of the paper book because the final decision, namely, the judgment in the Court of Common Pleas, was not in his favor. "Notwithstanding the fact that the defendant succeeded in reducing the amount of the judgment, he was, nevertheless, the losing party, just as the defendant on an appeal from the judgment of a justice of the peace is the unsuccessful party if judgment be obtained aganist him in the Court of Common Pleas though for a less amount." Henning v Keifer, 43 Pa. S. C., 177. In that case the defendant was the successful party in the appellate court, nevertheless, he was the losing party tested by the state of the record in the court below. Matthews et al. v Rush et al. "The words 'finally losing the cause' in the Act of 1897 and ‘final decision' in the Act of 1907, refer to the state of the record of the court in which the case is tried, which puts an end to the action; when no further question is reserved for future determination except such as may be necessary to carry the final judgment into effect. As a general rule a judgment is not considered a final one which settles only a party of several issues of fact." Penna. Co. v Wallace, 44 Pa. S. C., 64. Those decisions were quoted with approval in Knowler v Everett Realty Co., 65 Pa. S. C., 169, likewise the exact point was decided in Coyne v Lackawanna Co., 23 D. R., 73. In the case at bar the defendants were the victors in the particular question raised on the appeal, but the plaintiff got the final decision in their favor. On account of the manifest injustice the court is loath to follow these decisions to their ultimate conclusion. However, there seems to be no portal of escape. It is not within the province of the court to change the law. A similar hardship resulted in the construction of the Act of 1833 relative to costs on an appeal from a justice of the peace. The Act provides: "The costs on appeals hereafter entered from the judgment of justices of the peace and alderman shall abide the event of the suit, and be paid by the unsuccessful party as in other cases." Under this Act a plaintiff may recover a much smaller sum on an appeal from the judgment of a justice of the peace and yet recover costs. Knappenberger v Roth, 153 Pa., 614. King v Bayles, 31 Pa., 424. Under all these decisions the court is compelled to conclude that the plaintiff in this case are the parties in whose favor the final decision was rendered and are, therefore, entitled to charge and collect from the defendants as part of the costs such amount as was expended for printing their paper book on said appeal. The right to tax the other costs in the case does not seem to be questioned. And now, December 15th, 1919, the assignments of error are sustained and the Prothonotary is directed to tax the costs in accordance with this opinion. Pleading and Practice Stephens et al. v Dye. -Contracts- -Averments--Oral or Written- -Prom issory Note-Act of May 14, 1915, P. L. 483. In an action on a promissory note, where a copy of the note was incorporated in plaintiffs' statement, it was not necessary under the Practice Act of 1915 to aver specifically that the contract sued upon was oral or written. A promissory note implies a writing and statutory demurrer overruled. Action in Assumpsit. Affidavit of Defense Raising Questions of Law Only. No. 25 March Term, 1919. C. P. Greene County. B. N. Freeland and T. H. Shannon, for plaintiffs. RAY, P. J., January 1, 1920.-This is an action in assumpsit. The praecipe and plaintiff's statement were filed December 23, 1918. The defendant, December 26, 1919, filed an affidavit of defense wherein, under Section 20, of the Practice Act of 1915, he sets up a question of law only. That question is now before the Court for determination. The first paragraph of the affidavit of defense reads as follows: "First. The defendant avers, as a question of law, that the statement of claim of plaintiffs is defective in that it is an action on a contract but does not state whether the contract was oral or in writing; and he avers that the said question of law so raised should be set down for hearing and disposed of by the court before any other or fuller affidavit be required from the defendant." The defendant in support of his contention relies on Section 9 of the said Practice Act, which provides: "The statement of claim should be as brief as the nature of the case will admit. In actions on contracts it should state whether the contract was oral or in writing." The plaintiffs seek to recover on a promissory note. The first paragraph of the statement reads, in part, as follows: "First. The defendant, on August 30, at the county aforesaid, made and delivered his promissory note to plaintiffs, whereof the following is a copy." Then follows a copy of the note bearing date August 30, 1919, payable six months after date, for value received, in the sum of $4.893.75 with interest, etc., to which is attached the signature of A. J. Dye. True, the plaintiffs do not, aver explicitly, in words, that the said promissory note on which they bring suit is in writing, nor, in our opinion, was it necessary they should do so in order to comply with Section 9 of the said Practice Act. There is no denial that the alleged copy of the note declared on is, in form, a promissory note, and a promissory note must of necessity, be in writing. All the legal definitions of a promissory note we recall having seen are substantially the same. The latest definition to receive our attention is found in 8 Corpus Juris, page 41, and reads as follows: "A promissory note is a written promise of one person to pay to another named therein, or to order, or to bearer, a fixed sum of money, at a time specified therein, or at a time which must certainly arrive. This is the sum and substance of the various definitions given by text writers and by the courts." In our opinion the statement is a substantial compliance with the Practice Act of 1915. The question of law raised by the affidavit of defense is, therefore, decided in favor of the plaintiffs, and the defendant is directed to file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days of the filing hereof. Karaffa v Ferguson. -Distance Negligence- -Proof of Sounding Horn- -Speed of Automobilethe Car Went After the Accident-After Discovered Testimony-NonSuit. The Court will lift a non-suit in a case where a small child has been killed by an automobile driven at such a speed that after the accident it strikes the curb, shears some of it off, and then proceeded nearly a square before it stops. This is true although no alarm was sounded and no witness testified to the speed at which the automobile was proceeding. The testimony of an after discovered witness may supply evidence as to speed. Motion to Lift Non-Suit. No. 101 May Term, 1918. C. P. Washington County. Vernon Hazzard, for plaintiffs. D. M. Anderson, for defendant. BROWNSON, J., October 24, 1919.-I think I was right in ruling upon the trial that there was no sufficient evidence that the defendant was guilty of negligence in not sounding his horn; that is to say, there were not such facts and circumstances proved as would show neglect of a duty which the defendant owed to the deceased to sound his horn as a warning to the latter. The place where the accident occurred was not at or near a street crossing or a street intersection, and the defendant, as he neared this point, was proceeding, as I understand the testimony, along a straight stretch of street, with the point of accident in his view. No one other than this child was upon the driveway of the street, and there was no testimony to show that the child was upon it, or stepped upon it, or had even emerged from the door of his mother's store, long enough before the accident to afford the defendant any time in which to warn him by means of the horn. The difficulty in the case was over the question whether the defendant was operating his automobile at a negligent rate of speed. The accident occurred in the outskirts of Monongahela, upon a street which is part of a highway running up and down the Monongahela river. No proof was offered that signs had been erected along the highway which would render it the duty of the defendant, under the Act of July 7, 1913, P. L. 672, to run at this point at a less rate of speed than 24 miles per hour. No vituess had given an estimate of his speed as exceeding this rate. Statements by witnesses that the car was going "fast" or "at full speed" are too vague to prove any specific speed, at least by themselves. However, on reviewing the testimony, as it has been written out, and considering in connection with the statements just mentioned two facts testified to by other witnesses, viz: that at or about the time the boy was struck by it-probably just after this the automobile collided with the cement curb of the sidewalk with such force as to cause a crash which sounded to one of the witnesses like "a wreck." and, according to another witness, to shear off some of the curb "just like you take a hatchet and crack it loose," and that after so doing the automobile went, according to some of the witnesses, more than half way to Factory Street (which street, one witness said, is at a distance of what would be about equal to a square) before it was stopped, it now seems to me to have been at least a close case on the question whether there was not sufficient evidence from which the jury might legitimately have inferred an excessive rate of speed. Then, on reflection, we believe the third offer made by plaintiff's counsel on page 49 of the stenographer's record ought to have been admitted: Dugan v Arthurs, 230 Pa., 299. Still further, the plaintiff has found since the trial a witness who swears that she saw the accident, and that the automobile was going at a rate of speed |