On appeal from the Supreme Court.
For the appellant, Waddington & Mathews.
For the respondent, Cole & Cole.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. A judgment was entered in an action on a promissory note in the court below in favor of the plaintiff and against the defendant, the verdict having been directed by the trial court of the Cape May County Circuit of the Supreme Court and from this directed verdict the defendant below appeals.
There are twenty-four grounds of appeal set down for a reversal; some are expressly abandoned; others not having been argued will be considered as abandoned. Sargeant Bros. v. Brancati, 107 N.J.L. 84.
The plaintiff, First National Bank of Philadelphia, alleges in the first count of the complaint that the defendant, with others, made and delivered to the plaintiff their promissory note in the sum of $36,900, dated May 19th, 1931, payable to the order of themselves, on demand, at the said bank. A copy of the note was annexed as Exhibit A. It further alleges that the defendant, in writing, authorized another to sign
his name as maker and endorser of this obligation and that the donee of the power did so; that the plaintiff holds the note and that $350 has been paid on account. Demand for payment of the balance had been made and refused, and that there is due $36,550 with interest from October 1st, 1931.
The second count in the complaint alleges that the defendant, in 1928, then a director of the Citizens State Bank of Williamsport, Pennsylvania, in order to revive the impaired capital of that institution, negotiated a loan of $50,000 from the Susquehanna Trust Company of Pennsylvania, by executing and delivering a note for that sum, signed and endorsed by the defendant and other directors. Said note, it is alleged, was assigned, transferred, set over and delivered to plaintiff for a valuable consideration. Payments made on account had reduced the note to $37,900 and a renewal note for that sum was made and endorsed by the defendant and the others, dated July 21st, 1930, which was attached to the complaint and marked Exhibit B. Since the making of the note, it had been further reduced to the sum of $36,550, which sum plaintiff demands with interest from October 1st, 1931. The plaintiff abandoned the first count of the complaint.
At the end of the plaintiff's case defendant moved for a nonsuit upon the ground that the notes were not negotiable because (a) they were neither payable on demand nor at a fixed time; (b) because the holder having the right by the contract itself to call the notes forthwith for failure to furnish additional collateral, rendered the time for payment uncertain and not determinable, and (c) because the holder having the right by the contract itself to sell the collateral and apply the proceeds to the principal, therefore, there was no certainty as to the amount due.
There were further grounds for nonsuit urged that there was no proof of delivery of the obligation and that the plaintiff, by accepting the second note, set up in the first count, discharged the prior note set up in the second count.
The court denied the motion for nonsuit, holding that the plaintiff had made out a prima facie ...