Appeal, No. 342, Jan. T., 1962, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1955, No. 8087, in case of Charles H. Penneys v. Samuel Segal, Jr. Order affirmed.
Edward Greer, with him Robert K. Greenfield, and Folz, Bard, Kamsler, Goodis & Greenfield, for appellant.
Israel Packel, with him Josef Jaffe, and Fox, Rothschild, O'Brien & Frankel, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is an appeal from an order of the Court of Common Pleas No. 4 of Philadelphia County which
granted a new trial in an assumpsit action upon the ground that the trial court inadequately instructed the jury on the subject of the burden of proof.
Samuel Segal, Jr. (Segal), in November, 1953, received a telephone call from a Mrs. Daoud who is engaged in the jewelry and furniture business, under the name of Daoud Brothers, in atlantic City and elsewhere. Mrs. Daoud suggested, since the business was in need of ready cash, that Segal might be interested in purchasing some jewelry and to that end, thereafter, Segal met her in New York City.*fn1 At that meeting Segal selected certain jewelry of the value of $65,000 and gave Mrs. Daoud a series of promissory notes payable to Daoud Brothers. Of these notes, only six notes are in the possession of Charles H. Penneys (Penneys) and these six notes form the subject matter of this litigation.
These six notes, all dated November 9, 1953, are payable to the order of Daoud Brothers and signed by Segal. One note for $2500 was due April 15, 1954; the other five notes, each for $5000, were due, respectively, April 19, April 26, May 3, May 10 and May 17, 1954. Prior to their maturity dates, these six notes came into the possession of Penneys endorsed in blank by a Daoud Brothers' representative whose authority to so endorse is not questioned.
Upon maturity of these notes, totaling $27,500, payment was refused by Segal. Thereafter, Penneys instituted an assumpsit action in Court of Common Pleas No. 4 of Philadelphia County against Segal for the amount of the notes plus interest. The matter came on for trial before the Honorable BYRON MILNER and a jury and the jury ...