#### Canfield *v.*Ditman.

In a suit on a promissory note, the defendant filed an affidavit of defence, in which he averred that the note had been given to prevent the protest of a previous note of the same tenor and effect, between the same parties, with the understanding that the defence which the defendant had to the previous note should apply to the second note ; that the defence to the first note was as follows : The payees of the note obtained the same during the absence of the defendant from the city and after refusal to give such note, by going to the clerk who indorsed checks and drafts for deposit, and prevailing upon him to sign the firm name to the note. The refusal of the defendant to give any such note was concealed by the payees from this clerk, and no consideration was paid to or received by the defendant then or at any time. There was a further averment that “the deponent expects to be able to prove that the above facts, or sufficient of them, were communicated td the plaintiff at the time he took the note from the payees.” The court made absolute a rule for judgment for want of a sufficient affidavit of defence. *Held,*not to be error.

Per Curiam. — The defendant does not say that his clerk who signed the firm name to the first note did so without authority. He does say that the clerk was authorized to sign the firm name to checks and drafts for deposit. The omission of this averment in the affidavit is fatal, especially as it was a matter peculiarly within the knowledge of the defendant.

Jan. 30, 1889.

Error, No. 69, Jan. T. 1889, to C. P, No. 4, Phila. Co., to review a judgment for want of a sufficient affidavit of defence, in an action of assumpsit, between J. G. Ditman, as plaintiff, and D. B. Canfield et al., trading as the D. B. Canfield Co., as defendants, at Jan. T. 1888, No. 700. McCollum and Mitchell, JJ., absent.

Suit was brought on a promissory note made by the defendants to the order of B. M. Dusenbury & Son, and endorsed by the latter. The defendant, Canfield, filed ah affidavit of defence, in which he averred that the note “ here sued upon was made by deponent to prevent the protest of a previous note of same tenor and effect and between the same parties, with the distinct understanding that the defense which the defendants had to the previous note should fully apply to this note, notwithstanding the renewal. Plaintiff had deposited this note in a bank and did not wish his credit affected by a protest. The defence to the previous note, which was agreed to be fully applicable to the note in suit, is as follows: The payees of the note obtained the same during the absence of the defendants from the city and after refusal to give such a note, by going to the clerk who indorsed checks and drafts for deposit, and prevailing upon him to sign the firm name to the previous note. The refusal of the defendants to give any such note was concealed by the payees from this clerk, and no consideration was paid to or received by the *43defendants then or at any time since. Deponent expects to be able to prove that the above facts, or sufficient of them, were communicated to the plaintiff at the timq he took the note from the payees.”

In a supplemental affidavit, the defendant averred “ that, in his affidavit of defence, he meant to swear, and does now swear, that the defendants never received any consideration either for the note obtained, under the fraudulent circumstances mentioned in the affidavit of defence, from their clerk, or for the note given in renewal, with the distinct understanding that the defence which the defendants had to the original note should fully apply to the renewal note.”

The court made absolute a rule for judgment for want of a sufficient affidavit of defence.

*The assignments of error*specified the action of the court in entering judgment against the defendants, 1, when their affidavit of defence disclosed that they had signed the note in suit without any consideration and with an express understanding that their defence to the original note should fully apply, to this note; 2, when their affidavit of defence disclosedthatthey had not signed the original note and had not authorized its signature in their name, and had not received any consideration at any time for said note; 3, when their affidavit of defence disclosed that the note in suit was a renewal of a note which they had neither signed nor authorized to be signed for them, and that the renewal was expressly subject to the defences which they had to the original note.

*John B.*Uhle, for plaintiffs in error.

The accommodating party, whether maker or indorser of a promissory note, may show that he put his name to the note at the request of the plaintiff, not only without consideration, but also upon the plaintiff’s express promise that no liability would thereby be incurred.' Breneman *v.*Furniss, 90 Pa. 186.

Here, the note in suit was • procured upon the promise that no liability would be incurred in making it for the accommodation of Ditman.

All contrary citations are instances of an unsuccessful attempt to set up the accommodation against the holder for value. Story, Promissory Notes, §§ 194, 190; 1 Parsons, 207, 184, 226.

No one can be made liable for the payment of a note which he neither signed nor authorized to be signed. Nor can the limited authority “ to sign checks and drafts for deposit only ” give the power to make a new obligation. For it is not part of the duty of a clerk to borrow money or do any act outside of the scope of his employment. Kerns *v.*Piper, 4 Watts 222; Story on Agency, §§ 62, 65 ; Fawrencez\ Gebhard, 41 Barb. 575.

Nor can the fraud exercised by Dusenbury, in obtaining the original note from a clerk “ for indorsement and collection only ” and then passing upon Ditman a note never signed or authorized by *44the D. B. Canfield Co., be overcome by the making of the new accommodation note with a special promise to leave open for defense all questions as to the validity of the original note. Royer *v.*Keystone National Bank, 83 Pa. 248; Kirkpatrick *v.*Muirhead, 16 Pa. 117. 125-

Feb. 11, 1889.

If the original note had merely been obtained by fraud, and Ditman had bought it for a valuable consideration without acting mala fide, no doubt he could recover. Phelan *v.*Moss, 67 Pa. 59.

*Chas. Lex Smyth,*for defendant in error.

The averments in the affidavit are not stated in such a manner as entitles them to the weight of facts proved or admitted. Allegations should not be in the alternative. Bank *v.*Bartholomew, 2 W. N. C. 445. Deponent does not swear that he is informed, or that he even believes, that plaintiff was informed of any matter that would have put him on such notice as would have amounted to a defence. Even the guess that he ventures is in the alternative and equivocal.

If the original note was an accommodation note, that is no defence in the hands of an innocent holder. Beckhaus *v.*Bank, 22 W. N. C. 53. Even with notice of the want of consideration. Stephens *v.*Bank, 88 Pa. 163/ Or under circumstances which ought to have excited the suspicion of a prudent man. Phelan *v.*Moss, 67 Pa. 65.

The deponent does not, in the affidavits, swear that the clerk had no authority to sign his name to the note. The holder of the original note is not presumed to have known that the original note was made by the clerk without authority. The making of the renewal note was, therefore, either upon a new consideration, or it was a ratification of the act of the clerk. As to ratification, see Garret *v.*Gonter, 42 Pa. 146; Pearsoll *v.*Chapin, 44 Pa. 9; Berger’s Ap., 96 Pa. 443.

Per Curiam,

If the defendant below had a defence against the first note, it may be his affidavit would have been sufficient to stop judgment upon the second. He does not say that his clerk who signed the firm name to the first note did so without authority. He does say that the said clerk was authorized to sign the firm name to checks and drafts for deposit. The omission of this averment in the affidavit is fatal, especially as it was a matter peculiarly within the knowledge of the defendant. Conceding the authority of the clerk to sign the first note, there was not the shadow of a defence to it, and still less than a shadow of a defence to the second.

Judgment affirmed.