<p>Error, No. 121, July T. 1884, to C. P. No. 3, Phila. Co., to review a judgment on a verdict for plaintiff in an action of assumpsit on a promissory note by Chas. Erazier et al. against John Hey, at March T. 1882, No. 256. Before Mercur, C. J., Gordon, Paxson, Trunkey, Sterrett, Clark and Green, JJ.</p> <p>The narr. was upon a promissory note for $500, dated Dec. 28, 1880, at twelve months, made by Jacob S. Culbertson to the order ■of the defendant and by him endorsed. The pleas were non assumpsit, payment, set off, with leave, etc.</p> <p>The defendant gave the following notice:</p> <p>“You will please take notice that on the trial of the above case the defendants will give in evidence the following special matter, to wit: The note, a copy of which is filed in this case, was given under the following circumstances: Jacob S. Culbertson, the maker, had been concerned with Adam Forepangh in the building operation, in which the said Forepaugh was represented by his agent, William Holloway. Upon the settlement of the accounts between the said Forepaugh and Culbertson, it appeared that the said Culbertson was indebted to the said Forepaugh in the sum of $500, which said sum it was agreed between the parties should be paid by the work and labor to be done by the said Culbertson.</p> <p>“ The said Forepaugh desired to have some security that the said Culbertson would perform work and labor to the said amount, and the said Forepaugh, by his agent, the said Holloway, requested the defendant to become security for the said Culbertson, that the said work would be done by him when requested. That the defendant consented to become security, and, in order to put the obligation of the defendant in wilting, the note aued on in the present case was prepared and signed by the said Culbertson, and endorsed by the defendant. That at the time of said endorsement by the defendant, it was expressly agreed by and between the defendant and the said Forepaugh, through his agent the said Holloway, that neither the said Culbertson, nor the defendant were to be called upon to pay the said note in money, but that the said note was given merely to secure the said Forepaugh that the said Culbertson would perform work to the amount of $500 when requested. That neither the said Forepaugh, nor the said Holloway, nor any one acting for either of them, has ever requested the said Culbertson to perform any work on account of the said $500, and the said Culbertson has at all times been ready and willing to perform such work whenever requested. That the defendant endorsed the said note simply for the accommodation of the said Culbertson, and without receiving any consideration whatsoever, and because defendant believed and still does believe that the said Culbertson would perform the said work whenever requested.</p> <p>“ That the plaintiffs in this suit are not bona fide holders for value of the said note, but that they hold the same simply as agents of the said Forepaugh, he being at present the real owner thereof, and that this suit is brought in the name of the plaintiffs simply for the purpose of endeavoring to avoid the defence which the defendant has to the said note.”</p> <p>The plaintiff offered in evidence the note and rested.</p> <p>The defendant called as a witness Jacob S. Culbertson, and offered to prove by him as follows, upon the trial before Yeekes, P. J. r</p> <p>“ The note sued upon and read in evidence was given under the following circumstances: Jacob S. Culbertson, the maker, had been concerned with Adam Forepaugh in a building operation in which the said Forepaugh was represented by his agent, william Holloway. Upon the settlement of the accounts between the said Forepaugh and Culbertson, it appeared that the said Culbertson was indebted to the said Forepaugh in the sum of $500, which said sum it was agreed between the parties should be paid by the work and labor to be done by the said Culbertson.</p> <p>“ The said Forepaugh desired to have some security that the said Culbertson would perform work and labor to the said amount;; and the said Forepaugh, by his agent, the said Holloway, requested the defendant to become security for the said Culbertson that the said work would be done by him when requested. That the defendant consented to become security and in order to put the obligation of the defendant in writing, the note sued on in the present case was-prepared and signed by the said Culbertson and endorsed by the said defendant. That at the time of the said endorsement by the defendant, it was expressly agreed by and between the defendant and the said Forepaugh through his agent, the said Holloway, that neither the said Culbertson nor the defendant were to be called upon to pay the said note in money, but that the said note .was given merely to secure the said Forepaugh that the said Culbertson would perform work to the amount of $500 when requested. [That the said Forepaugh at the time of the giving of the said note agreed by his said agent that the said Forepaugh would hold the said note till the end of the year for which it was drawn as such security.] That neither the said Forepaugh, nor the said Holloway, nor any one acting for either of them, has ever requested the said Culbertson to-perform any work on account of the said $500, and the said Culbertson has at all times been ready and willing to perform such work whenever requested [and within the said year repeatedly offered himself for that purpose]. That the defendant endorsed the said note simply for the accommodation of the said Culbertson and without receiving any consideration whatsoever, and because the defendant believed that the said Culbertson would perform the said work whenever requested.” It was agreed by counsel for the plaintiffs- and defendant that the notice given was sent under the rules of the Court by the defendant to the plaintiffs’ counsel.</p> <p>Counsel for the plaintiffs objected to the admission of the said evidence: 1, because the notice was not sufficient; 2, because the evidence, if admitted, was not sufficient to put the plaintiffs on proof of consideration. The court sustained the objection upon the ground that the said evidence would not put the plaintiffs upon proof of the consideration of the transfer of the said note. Exception.</p> <p>The assignment of error specified the action of the court in refusing to admit the defendant below to prove as contained in the-offer, quoting the offer, but not the objections or ruling.</p>
