Opinion
January 12, 1925.
Judgment — Warrant to confess — Corporation — Liability of individual endorser — Appeals — Disputed question of fact — Issue — Remand.
1. Where a corporation makes and signs a promissory note to the order of "ourselves" and endorses and signs on the back of it a printed form of assignment, guaranty and warrant to confess judgment, and an individual signs after such endorsement, such individual has a right to an issue to determine the fact as to whether or not he endorsed the note with the intention of being personally bound by the provisions of the warrant of attorney.
2. Where in such case the court below has refused to strike off a judgment entered under the warrant against the individual endorser, the Supreme Court, on the suggestion that there was such a disputed question of fact not determined in the court below, will remand the case with directions that the lower court, if it finds that the question of fact raised by the appellant is disputable, award an issue, with further directions that the existing judgment be sustained or stricken off as the event of such issue shall justify the lien to remain in the meantime.
Petition for award of issue and answer thereto. No. 82, Oct. T., 1924. See 281 Pa. 587.
And now, January 12, 1925, it appearing, by the petition and answer filed in this case, that there is a disputed fact of the character hereinafter set forth, which has not been heard and determined and may affect appellant's claim to have the judgment against him stricken from the record, it is ordered that the judgment heretofore entered by this court be amended so as to read as follows: "The order of the court below is reversed and the record is remitted with a direction to strike off the judgment against appellant, unless appellee shall, within ten days after a return of the record, pay the costs of the present appeal and petition the court below to award an issue to determine the fact as to whether or not appellant endorsed the note in suit with the intention of being personally bound by the provisions of the warranty of attorney printed on the back of the note above his signature, and if, after answer filed and depositions taken, it appears that this alleged fact is disputable, to award an issue to have the question determined by a jury in due course, the existing judgment (the lien of which is to remain pending the proceedings hereby authorized), to be sustained or stricken off as the event of said issue shall justify; either party to have the right of appeal from the final action of the court below as in other cases."