Cabarga v. Seeger

The opinion of the court was delivered by Coulter, J. We cannot recede and go backwards upon the subject of amendments under our statute. Those amendments are an amelioration of the rigid technical forms of pleading, demanded as well by the more liberal tone and manner of business in modern times, as by good sense and the general advancement of principle and justice over form and technicality. The real cause of action in this ease, from beginning to the end, was identical and the same. That is, whether the executors of Meyer were liable to pay to Cabarga the amount due on the note made by Goutier on the 7th April, 1842, payable to the said Meyer or order, and endorsed (or, as it is called in the paper-book, the superscription, that being the word used, I presume, in the Spanish language,) to Cabarga for value received; or whether they were not bound. The case, in all its phases and aspects, presents this feature as the matter in controversy. That is, whether the subscription, as it is called, on the note was a transfer for value or a mere order to pay the money to Cabarga. The first narr., containing only the general counts, did not set out the note and endorsement; and the bill of particulars did not set them out accurately, but yet sufficiently to identify them as the same which were set out in the amended narr. The [519] cause of action being defectively set out, the plaintiff had a right to ask leave to set it out correctly on or before the trial. The court allowed the plaintiff to set out his cause of action, consisting of the note and endorsement, correctly, in an amended narr., so as to bring the merits of the matter in controversy into judgment. The defendant pleaded to issue. There was no error in allowing the amendment. The additional count was filed by leave of the court, on the 19th November, 1849, and additional pleas filed by leave of court on the 26th November, 1850. So that there was ample time to digest the new count and to meet it. After a full trial on the merits, and verdict for plaintiff, we cannot disturb the judgment on this error assigned. The note and endorsement was properly admitted in evidence; it is the very cause of action set out in the amended narr.; it was sufficiently proved to allow it to go to the jury. The witness who verified it, knew the signature of Meyer, witnessed his will, and, if he did not actually see him write his name, heard him repeatedly acknowledge his signature. The fact of its not being described in the first general counts, neither constitutes a variance nor furnishes any objection whatever to its admission. Indeed, it might have been good under the general counts, because there is a distinct, unequivocal assertion in the endorsement that it was transferred to Cabarga for $1800 in specie. But under the pleadings, as they stood, it was proper evidence. There was no error in submitting to the jury the facts alleged to be evidenced by the superscription. The court did not submit to the jury the legal construction or the legal effect of the paper, nor yet the meaning of words qua words. But a word existed in the paper, as to which there was the testimony of two witnesses, whether it was one word or another. The word was obscure by an abrasion from time or accident, or was illegibly written. But the defendant himself had put in a number of letters, tending to establish facts and circumstances, from which it was to be inferred that the endorsement was an authority to collect. The court very properly submitted the fact to the jury. They could rightfully do nothing else; and thus they gave the defendant the full benefit of his testimony. The instruction from the court to the jury upon this evidence was right, that is, if they were satisfied from the evidence that the superscription was a mere authority to collect the money from Goutier, and not a transfer to Cabarga for the consideration of $1800, that their verdict should be for the defendant; otherwise, for the plaintiff. The court told the jury that there was sufficient evidence of demand and refusal to pay by the drawee, Goutier. And there certainly was, if the evidence produced by the defendants was believed by the jury. The evidence is contained in one of the letters. The court also said that there was sufficient evidence of [520] notice to Carlos Meyer, the alleged endorser; and this is evidenced in the same manner, by one of the letters put in evidence by defendant. The only doubt raised on the argument was, whether the law in force in Cuba allowed three days’ grace on commercial paper. It was admitted that if their law was the same as ours, that then the instruction was right. But what evidence have we that the learned judge at nisi prius was wrong ? There is no testimony on the paper-book as to the foreign law. It was the duty of the counsel to produce evidence here of the foreign law. It is probable that the learned judge knew and had informed himself as to the law of Cuba. At all events, we cannot say that he was wrong, without knowledge or evidence ourselves. I would say, that as commercial law springs from the same sources in civilized commercial countries, that the presumption is that the judge below was right, in the absence of all evidence or knowledge to the contrary. Judgment affirmed.