
    HEY vs. FRAZIER.
    An offer of evidence wMcli contains substantial averments not con~ 'tained in tbe notice of special matter is rightly rejected.
    Error to Common Pleas No. 3, of Philadelphia County, No. 321 July Term, 1884.
    This was an action on a promissory note for $500, made by -Jacob S. Culbertson to the order of John Hey, and by him endorsed. At the trial of -the case the plaintiff offered the note ■••and protest in evidence, and rested.
    The defendant then called Jacob S. Culbertson and offered "to prove by him the following facts : That “the note sued upon ■ and read in evidence was given under the following circum- - stances: 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 Hollo- ' Way. 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. ' The said Forepaugh desired to have some security that the said 1 -Culbertson would perform work and labor to the said amount, - and the said Forepaugh, by his agent, the said Holloway, re'-quested 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 wrould 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 re-ceiving any consideration whatsoever, and because the defendant believed that the said Culbertson would perform the said work whenever requested.”
    “ 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 defense which the defendant has to the said note.”
    
    ■This evidence the plaintiff’s counsel objected to for two reasons :
    I. Because the evidence offered would not establish a state -of facts which would put the plaintiffs on proof of their consideration.
    II. Because the notice of special matter was not sufficient — . •the plaintiffs not having been notified that on the trial of the ■case they would be called upon to prove consideration, and having had no notice of matter noted above as appearing in ■the offer, but not in the notice of special matter.
    The parts of the above offer in italics were not contained in “the notice of the special matter.
    The Judge (Yerkes) sustained the objection, saying that the •said evidence would not put the plaintiffs upon proof of the -consideration of the transfer of said note, The Court charged the jury to find for the plaintiff.
    Hey then took a writ of error complaining of the rejection ■of the above stated offer.
    
      
      T. F. Jenkins, Esq., for plaintiff in error,
    argued that the negotiation of the note was such a fraud npon Hey as compelled the plaintiff to prove consideration; Lenheim vs. Wilmarding, 55 Pa., 73. Dickson vs. Primrose, 2 Miles, 366; Porter vs. Gunnison, 2 Gr., 297; Smith vs. Braine, 16 Ad. & Ellis, 244.
    
      Messrs. Cooper, Montgomery and Wagner, contra,
    
    argued that the allegata and probata must agree; Thomas vs. Mann, 28 Pa., 520. Evidence to contradict a written instrument is not admissible; Hill vs. Gaw, 4 Pa., 495; Anspach vs. Bast, 52 Pa., 356; Wharton vs. Douglass, 76 Pa., 273. To prove that the defendant did not receive any consideration for his endorsement is not sufficient, to shift the burden of proof upon a distant holder to show that he gave consideration; Knight vs. Pugh, 4 W. & S., 445; Brown vs. Street, 6 W. & S., 221; Albrecht vs. Strimpler, 7 aP., 477; Gray vs. Bank 29 Pa., 366; Callen vs. Fawcett, 58 Pa., 113; Phelan vs. Moss, 67 Pa., 67; Sloan vs. Bank, 67 Pa„ 472; Dingman vs. Amsink, 77 Pa., 114; Barnet vs. Offerman, 7. Watts, 130; Bank vs. McCann, 11 W. N. C., 480; Battles vs. Laudenslager, 84 Pa., 451. A clear and specific notice to prove consideration is necessary; Beltzhoover vs. Blackstock, 3 Watts, 21; Holme vs. Karsper, 5 Binn, 471; Albietz vs. Mellon, 37 Pa., 367.
   The Supreme Court affirmed the judgment of the Common Pleas on February 9th, 1885, in the following opinion :

Per Curiam.

The offer of evidence contains several substantial averments not contained in the notice of special matter furnished by the plaintiffs in error. This reason was sufficient to justify the exclusion of the evidence offered. The suit was on a negotiable note. The presumption, therefore, is that the holder obtained ;t in good faith and in the regular course of business before maturity. If such presumption is to be overthrown and the holder is required to show the consideration which he gave for the note, it is not sufficient to give notice to him of the want of consideration, or that it was negotiated contrary to the agreement of the parties to the note. The plaintiff in the action is entitled to distinct notice that he will be called on to :show his title on the trial; Beltzhoover vs. Blackstock, 3 Watts, 20; Knight vs. Pugh, 4 W. & S., 445. Still further, the defendant 1 elow did not offer to prove that the plaintiffs were not bona-fide holders for value of the note, or that there was any fraud in its execution; nor was it averred that they received it from a finder or a thief, or of one who acquired it fraudulently.

Judgment affirmed.  