Yingling v. Kohlhass

Goldsborough, J., delivered the opinion of this court : This -was an action brought by the appellee against the appellant,, on the 29th day of June 1857, in the Circuit court for Frederick county, to recover the sum of $150, and the interest thereon. The plaintiff below, by his nar.} declared upon a promissory [161] note given to plaintiff’s intestate',- to secure the payment of the above sum; also for money lent and advanced-, and in the third count for a similar sum on an account stated. The defendant pleaded',- 1st,- that he never promised as alleged; 2nd, to the first count, that he is not, and never was indebted as alleged; 3rd-, to the 2nd and 3rd counts, that he is not now, and never was indebted as alleged. At the trial, the plaintiff failing to produce the note' declared on, undertook to-account for its1 absence, by giving evidence of its loss, and that diligent search had been made for it but it could not be found. He then-offered the testimony of Benjamin1 A. Cunningham and Arthur Delashmutt, mentioned in the record, to prove the defendant’s admissions, both for the purpose of establishing the contents of the note in question and to sustain the second count in' his nah. In the progress of the cause, seven bills of exception were taken to the' rulings of the court. Two of th’em present questions in relation to the admissibility of evidence offered' on the part of the defendant; the third, fourth, fifth and seveiith, upon the refusal of the court to grant the defendant’s prayers, and the sixth,- upon the prayer of the plaintiff granted-by the court. In reviewing the rulings of the court below, as indicated by the several exceptions, we regard its action in excluding the evidence contained in the first and second exception’ as correct. The evidence in the first exception was not relevant to either of the issues. It might have been admissible under another state of pleading: but, under the Act of 1856, ch. 112, if the defendant means to rely upon an arbitrament and award, it is necessary to plead it specially. The evidence in the second exception was also irrelevant and properly rejected. It could not tend to prove any of the defences upon Which the defendant relied. It rather went to prove the loss of the note,- and’ its rejection could work no possible injury to the defendant. Before proceeding to consider the questions presented by the third exception’, it is'proper to notice an objection made by the [162] appellee’s counsel, to the form of the prayer, on the ground that it is too general under the Act of 1825, ch. 117. If the instruction asked had been, simply, that “upon the pleadings and all the evidence in the cause, the plaintiff is not entitled to recover in this action,” it would have been obnoxious to the objection made. But this general prayer is followed by particular specifications of the points upon which the opinion of the court was asked, and the prayer must' be read distributively as if it had been repeated before each of the specific grounds or objections stated. This form of prayer is a sufficient compliance with the Act of 1825. In the case of Tyson vs. Shueey, 5 Md. Rep., 544, a prayer similar in form was brought before this court, and no objection to it on that ground was suggested by the counsel or the court. In this case we have examined the several grounds presented in the prayer, and are of opinion it was properly rejected. In the argument of the cause the appellant’s counsel abandoned all the grounds alleged, except the sixth and seventh. In our opinion they are equally unavailing. They raise the question as to the character of the note, and assume that there was evidence tending to show it was negotiable; we shall notice this point in our consideration of 'the fourth and and fifth exceptions. It may be, that under the Act of 1856, ch. 112, the defendant might give in evidence, under the general issue, that the note declared on was a negotiable instrument, about which, however, we express no opinion, yet, conceding it to be so, the onusprobandi would lie upon the defendant. In this case we find no evidence to sustain the idea, that the note in question was a negotiable instrument, and therefore think the Circuit court acted correctly in disregarding the sixth and seventh reasons in the third exception, and also in rejecting the defendant’s prayers in the fourth and fifth exceptions. A negotiable note is one payable to order or bearer, “and it will not be negotiable unless these, or other words, of the same legal effect, are found in the instrument,” see Story on Prom. Notes, sec. 9.. [163] (Decided January 9th, 1862.) The note is not described in the declaration as negotiable; the admissions of the defendant, given in evidence, represent it as simply payable to Christian Kohihass, and the published notice of its loss, upon which the defendant chiefly relies for proof of its negotiability, described it in the same manner. We approve of the ruling of the Circuit court in granting the prayer of the plaintiff contained in the sixth exception. The evidence selected by the plaintiff, including the reference to the pleadings in the cause, was, in our opinion, legally sufficient to enable the plaintiff to recover. The prayer of the defendant in the seventh exception was properly rejected. There was evidence submitted to the jury from which they might find both the execution and delivery of the note. The admissions of the defendant clearly established both, and it was not material to find either the date of the note, or from what date it bore interest, the defendant having,, also, admitted that it was due and unpaid before the institution of the suit. Judgment affirmed.