Link v. Bergdoll

Citations

• 35 Pa. Super. 155
• 1908 Pa. Super. LEXIS 3

Syllabus

<p>Promissory notes — Indorsement—Protest—Notice of dishonor — Affidavit of defense — Practice, C. P.</p> <p>A contract of indorsement, when made, is neither a primary nor an absolute one. It is secondary and conditional. .It is but an agreement for future liability upon and after the happening of certain contingencies. > These are nowhere described in the body of the instrument indorsed, but inhere, ex lege, in the contract created by the simple act of indorsement. They are (a) presentation for payment at the time and place designated by the parties or the law for that purpose; (b) refusal to pay by the party or parties primarily bound; (c) prompt notice of such-refusal to the indorser, whose liability then, but not until then, becomes fixed.</p> <p>As a consequence he who seeks to recover on a contract of indorsement must aver the happening of each and every one of these essential facts or his statement will be demurrable. And, per contra, where a defendant denies, under oath, the existence of any one or more of the same facts, the affidavit is sufficient to put the plaintiff to his proofs before a jury.</p> <p>In an action against an indorser of a promissory note an affidavit of defense is sufficient which declares: “That no notice of the dishonor or protest of said note was given to this deponent by the plaintiffs in this case, or the notary who is alleged to have protested the same or any one on the occurrence of such dishonor or protest, or at any time until the bringing of this suit.”</p>