Carhart, Bros. & Co. v. Wynn

By the Court. McDonald, J. delivering the opinion. The Court having overruled the first ground in the motion for a new trial, we will not refer to that. [1.] No objection was made during the trial to Johnson’s evidence. An erased endorsement is no endorsement, and can, therefore, of itself be no evidence. If it had been bona fide made to pass the title, and fraudulently erased to defraud the defendant, it ought to have been proven, for mercantile usage does not raise a presumption of that sort. The note must have been offered in evidence on the trial, and the failure to except to Johnson’s evidence was a waiver of all objection to it, if, indeed, there was an available objection to it A party cannot pass over an objection, obvious upon the face of a paper, in evidence, take the chances of a verdict in his favor, and after a verdict against him, avail himself of it on a motion for a new trial. Bank of Utica vs. Smith, 18. Johns. Rep. 239. [2.] But if Johnson’s testimony had been objected to as inadmissible, the objection ought to have been overruled. Notes are often endorsed as a bare authority to the endorser to receive the money due thereon. Parol evidence is admissible to prove whether he was. in possession of the note as owner [27] or agent, and if the latter, to show the extent of his authority, when innocent parties will not be affected thereby. [3.] Johnson informed the defendant at the time he notified him to sue, that his authority did not extend beyond receiving the money on the note, that he was not authorized to sue, and that he had no interest in the note. If Johnson had not explained to the defendant, at the time of the notice, the nature and object of his possession of the note, the notice would have been available as a defence for Wynn, the defendant. In that case, the absolute endorsement of the note would have controlled; for in the absence of explanatory proof, the legal presumption of absolute ownership in Johnson would have given full effect to the notice as a discharge. Our brother Benning concurs with us in a judgment of reversal, but upon a somewhat different view of the case. He is of opinion that the legal presumption is that the endorsement of the paper and its erasure were simultaneous acts, or rather, that the one followed the other immediately; that the endorsers after writing the endorsement changed their mind and struck it out. If so, there never was, in reality, any endorsement, and if there was no endorsement, then there was nothing before the jury that could have been considered by them as an endorsement. If there had been a subsisting endorsement to the agent, he should doubt extremely, whether, as he would be the holder of the paper with a perfect legal title, he would not be a proper person to be notified under the statute; whether, in such a case, he would not have had the legal right to sue on the note, whatever' he himself might think or say to the contrary; or Avhetherhe would not, at least, be such an agent, that the notice to him would not be notice to his principal; Avhether it is not the duty of an agent to collect, to transmit such a notice, when he receives it, to his principal, and whether, in such case, notice to him would not be notice to his principal. Judgment reversed.