In its statement of the question involved in this case, the only point plaintiff asks us to determine, is whether "a new trial [should] be granted if the jury unreasonably disregards the evidence and finds for the defendant." In its assignment of error raising this question, it sets forth eight reasons why this should have been granted by the court below. Four of these are the usual general ones; three relate to matters of evidence, in two of which exceptions were taken; and one relates to the *Page 205 refusal of a point for charge, to which also an exception was taken. These several matters cannot be considered separately, because, under Rule 22 "Each error relied on must be specified particularly and by itself. If a specification embraces more than one point, or refers to more than one bill of exceptions, or raises more than one distinct question, it may be disregarded." We come, therefore, to the "one distinct question" here: Did the court below err in not granting a new trial? In considering this, we must assume all the evidence to have been properly admitted, and the charge to have been unobjectionable, especially as the assignment would otherwise "raise more than [that] one distinct question."
In determining the single matter thus left open, appellant faces several difficulties. It is not within our province to review the action of the court below in granting or refusing a new trial, "unless a palpable abuse of power appears": Class Nachod Brewing Co. v. Giacobello, 277 Pa. 530. If there was sufficient evidence on any determining issue in the case, it was the duty of the court below to submit that question to the jury, and the only remedy for a perverse verdict is by a motion for a new trial in that court: Hewitt v. Democratic Publishing Co., 260 Pa. 59; Maloy v. Rosenbaum Co., 260 Pa. 466. The result is that, unless binding instructions should have been given in favor of appellant, the matter is beyond our control; and here further trouble arises, for the court below was not asked to give binding instructions, and it is, at least, a grave question whether or not this leaves open the right to complain because they were not given. Without deciding that point, however, we propose to review the case; and, in so doing, must, of course, follow the rule that "In determining whether or not binding instructions should have been given by the court below, all the evidence and inferences therefrom, favorable to the opposite party, must be taken as true, and all unfavorable to him, if depending solely upon testimony, must be rejected": *Page 206 Fuller v. Stewart Coal Co., 268 Pa. 328; Scheer v. Melville,279 Pa. 401; Fluke v. Lang, 283 Pa. 54. In this aspect the relevant facts will be stated.
The action is by the holder against the maker of a promissory note, which had been handed to the payee, for the purpose of having it discounted and thus raising money to pay for certain bolts and nuts which had been purchased from the United States Government, and in which the maker was to have an interest. Hence, as the payee did not use it for that purpose, appellant admits it had "the burden of proof to show that it was a holder . . . . . . in due course," and so the statute provides, except where there is an intermediate innocent holder, which there was not here: sections 55 and 59, Negotiable Instruments Law of May 16, 1901, P. L. 194, 202; Putnam v. Ensign Oil Co., 272 Pa. 301. All the evidence, by which appellant attempted to carry that burden, was oral, and the jury refused to believe it; hence, on the authorities quoted, it cannot be considered by us, and the appeal fails: see also Second National Bank of Pittsburgh v. Hoffman, 229 Pa. 429; Harlow Co. v. Borough of Homestead, 194 Pa. 57; Hagan Lumber Co. v. Duryea School District, 277 Pa. 345.
Appellee's case does not depend even on this, however. There was evidence (apparently not very strong, but which the jury believed) that when the note was taken by the payee to the plaintiff bank, its vice-president, who was in charge of such matters, was told why the note had been given, and was asked to discount it and pay the cash on it, in order that the money might be used to purchase the bolts and nuts. Instead of doing this, he kept the note, in order, as he said, to look up defendant's financial standing, and later applied it on an antecedent obligation of the payee, only a part of which was then due. Under such circumstances, the bank was not a holder in due course, since it knew that the use thus made of the note was a wrongful one, so far as concerns this defendant (section 52, Negotiable Instruments *Page 207 Law, May 16, 1901, P. L. 194, 202), and hence it makes no difference that section 25 of the same statute provides that "An antecedent or preexisting debt constitutes value."
The other assignments of error (which simply repeat, under separate individual numbers, the several reasons for a new trial, except the one which states that "the verdict was against the law") need not be reviewed, since they are not expressed in nor suggested by the statement of the question involved (Collingdale Boro. v. Phila. Rapid Transit Co.,274 Pa. 124; Roberts v. Cauffiel, 283 Pa. 64); nevertheless, we have considered them and find nothing therein to convict the court below of reversible error.
The judgment of the court below is affirmed.