Cook v. Ambrose

1 Add. 323

• Court: Pennsylvania Court of Common Pleas, Westmoreland County
• Decided: March 15, 1797
• Status: Published

Opinion

President.

In the case of Moses v. M'Ferlan, it is stated, that an agreement was made, that the indorsement then made on a note, to enable the indorsee to recover in his own name, against the drawer should not be used against the indorser, and that, contrary to this agreement the indorsee sued the indorser, in the court of Conscience, that the indorser set up this agreement, and the court of Conscience rejected it as a defence against a suit there on the indorsement; and the court of King’s Bench held, that the court of Conscience did right; but that this agreement was a ground of action of indebitatus assumsit, to recover back the money. I do not say whether this is, or is not, a similar case. This is no collateral matter. Neither was that. The one is a fraud. The other is a mistake in the original transaction. This court has jurisdiction over the demand and the defence. The practice here on our act of assembly, in admitting defences against assigned obligations is more favourable to the defence, than in England on the act of parliament. I hardly think the principles of our practice justify allowing against an assignee any defence not arising out of the original transaction, or the framing of the obligation, or subsequent direct payment. No fraud is suggested in Laughlin or Cook, but a mistake common to the original parties, which it was as much the business of Ambrose, as any other, to prevent or correct. As he did not prevent or correct this mistake, but signed the bond, and gave it a currency, why should not he take the consequences, rather than Cook, who must now be considered as a bona fide assignee for a full consideration. Whether the proof be admissible seems to depend on what is the clear exclusive meaning of the words “with legal interest for the same.” There would be no reliance on written contracts, if their plain meaning may be contradicted by parole testimony. If, exclusively of any other, their meaning be the same as of with interest from the date, the evidence seems inadmissible. Whether or not this be their meaning, we will hear you argue.

Young, for the defendant,

declined any further argument, and, by consent, there was a verdict and judgment for the plaintiff.

See Davis v. Cammel ante 233.