Campbell v. Rusch

Weight, C. J. — Very many questions have been discussed by counsel, in presenting this case, which, from the view we take of it, need not be examined. It will be sufficient to take a short view of the case, and to state briefly the grounds upon wMeh we think it must be reversed. A question of leading importance on the trial was: what [342] meaning should be given to the words, “ in according to contract,” found in the body of the note, so far as they affected the plaintiff with notice of equities between the maker and indorsee. Defendant called a witness and asked him this question: “ If this note, or a similar one, were presented to you to discount, or negotiate, would the words, On according to contract,5 be sufficient to put you on your guard, and induce you to make inquiries as to what they meant, before discounting or negotiating such a note.” This question was objected to upon the ground that it was not competent for the witness to give his opinion as to the construction of the note, this being the duty of the court. The objection was overruled, and the witness answered that if he should notice such words in a note, he should inquire what they meant; that they might have reference to the delay, enforcement or extension of said note; but if a stranger presented it, he should want to know what those words meant ; he should think they meant something outside of the note. Upon the same subject, another witness was asked this question: “If the note in question was presented to a prudent banker, or business man, for discount, or as a collateral, what would be his conduct?55 The interrogatory was objected to as before, and the witness answered, that “ being brought on my guard by those written words, I would not take the note pn the strength of the signature of the maker; I would inquire what the words “in according to contract,55 meant.” In our opinion, in answering these questions the witnesses were not communicating facts, but their own conclusions drawn from the language used in the written instrument. This was not permissible. It is the special duty of the jury, under the instructions of the court, to draw conclusions, and for a witness to state facts. The exceptions to the rule are to be found in those cases where a witness speaks of matters of science, trade, and a few others of the same character, but they cannot be extended to cases like the present. It is not claimed that the words have a peculiar meaning, rendering the instrument ambiguous, or unintelligible to those not ac [343] quainted with sueb meaning; and that testimony was necessary in order to explain them. 1 Greenl. Ev. section 440-41, and cases there cited; and 1 Smith’s Lead. C. 286. Granting that the testimony shows the note in controversy to have been given for the balance due for the barley sold defendant, as a contract, it is entirely independant of that to deliver barley by the defendant, to Corrona, and of Corrona, to receive the same during the fall of that year. The answer does not set up the failure, or neglect of Corrona to receive the barley when tendered as a bar to the plaintiff’s right to recover the amount claimed; but conceding the liability on the note, proposes and seeks to offset the damages resulting to defendant from a breach of the contract to receive the barley when tendered. • And in this view of it, it might as well be a contract to deliver horses, cattle, or corn, as barley. The contract contains no provisions, in the most remote degree, justifying the conclusion that the payment of the note is dependant upon the performance of its provisions on the part of Corrona. Viewed as an independant contract then, and giving defendant the full benefit claimed for the words “ in according to contract,” it seems to us that his defense could not be maintained without more, or other circumstances than are at present disclosed. If there was an’ equity in favor of defendant, which would effect the note in the hands of a purchaser before maturity, or if any defense arose to him, it arose and accrued subsequent to the time of the transfer. It would be what may be styled a subsequent equity ; one that did not exist against; and was not attached to, the note itself at the time of sale. Being such, it could not prevail against the plaintiff. Story on Prom. Notes, section 178, et seq. 1 Sand. Sup. C. R. 53. Section 1740, of the Code, upon the subject of set-off, does not change or interfere with the rule above recognized. This was a negotiable note. Upon the question of notice, we think the instructions of the court to the jury were exceedingly clear, and pertinent, and such as to leave the plaintiff but little if any ground of [344] complaint. Whether the plaintiff had actual notice of any contract between defendant and Corrona, they were left to judge from the testimony, but they were distinctly told that the words, “ in according to contract,” on the note itself, would not impart notice to the plaintiff of the barley contract. So far, therefore, the jury were told just what appellant claims should have been told them, that is to say, the court gave a construction to the instrument instead of leaving that question to the jury. And it was no objection, after this, to leave' it to the jury to determine whether these words were so unusual as that when taken into connection with all the other facts, attending the transfer of the note, they believed plaintiff took it with notice of the contract. But entertaining the views above expressed, of the relative rights of the parties, even conceding that plaintiff purchased with notice, it is not necessary to pursue this inquiry further. The case must be reversed and remanded for a trial de novo.