Morrison v. Welty

Cochran, J,, delivered the opinion of this court. Tiie questions presented for consideration in this case, arise upon eight bills of exceptions, the first four taken to the admission of testimony, the 5th, to the granting of the defendant’s prayer, the 6th and 7th, to the refusal of the court to grant the instructions contained in the plaintiff’s 1st and 2nd [174] prayers, and the 8th, to the refusal to admit evidence for the plaintiff, after the case was announced closed, and to an instruction given by the court upon two notes, then produced by the plaintiff to be delivered to the defendant and cancelled. The 1st, 2nd, 3rd and 4th exceptions were taken to the admission of the testimony of John Six, John J. and Willi am Welty, offered on the part of the defendant to establish a substantial defence, by proving the existence and contents of two notes given by the defendant to .the plaintiff, for the indebtedness declared on in this 'case. The exceptions to the admission of this evidence, we think, were properly taken. Its admission was in violation of the rule, that the contents of a written paper cannot be proved by parol, without first giving evidence of its loss, or of notice to the adverse party to produce it, if in his possession. Such proof of loss, or notice to produce, as the case may'be, is a duly imposed as a necessary preliminary to the offering of evidence of the contents of a written paper. 3 H. & J., 97. 11 G. & J., 247. This determination of the question as to the inadmissibility of the defendant’s evidence, renders the expression of an opinion upon the question presented by the 5th exception, wholly unnecessary, as nothing material to th.e case would be ascertained by it. The 6th and 7th exceptions involve the same principles, and present the same questions. The plaintiff, upon the evidence of the defendant, with that offered by himself, asked an instruction from the court to the jury, that he was'entitled to recover if they should find that the notes mentioned in the evidence were altered by the wife of the plaintiff before they went into his possession, by affixing seals to them without his knowledge and consent, or that of the makers of the notes. The prayer assumes that the indebtedness covered by the notes, and that claimed in this case, is the same, and that there was evidence that the notes were in the plaintiff’s possession, although there was nothing to show, at that stage of the c.ase, that they were produced by the plaintiff for delivery to the defend [175] ant. Upon these, with the other hypothetical facts stated in the 6th and 7th exceptions, we are to consider: 1st, whether such alteration of the notes bars the plaintiff’s right to recover upon his count for money loanéd, the original indebtedness for which they were given? and 2nd, if the plaintiff’s right to recover on that count was not impaired by such alteration, whether he was entitled to the instruction prayed,- without the production of the notes for delivery to the defendant? We hold it to be well settled, that the acceptance of a security, or undertaking of equal degree, is not of itself an extinguishment of the original debt for which it is taken, if it remains in the hands of the creditor unpaid, and he can produce it to be cancelled. 2 G. & J., 493. 3 Gill, 350. 1 Md. Rep., 514. 3 Md. Rep., 265. That the notes in question-were given for an antecedent indebtedness is not disputed, and as the plaintiff’s case is stronger than those presented in the authorities referred to, from the assumption of the fact that he did’ not receive them until their validity was made questionable by the alteration'made in them, it is evident that his right to recover could not be disputed, unless the alteration, made before he received them, extinguished the debt. In the argument of the case it was contended, with some force and show of authority, that the alteration, made as assumed in the plaintiff’s prayers, should be considered as a mischief done by a stranger, and without effect upon his right to recover upon the notes. Waiving the consideration of that point, we think the effect of the change should be limited to the notes alone, and that, at most, it could only destroy them as binding obligations from the defendant to the plaintiff, without impairing his right to recover the original debt. It has been held that the alteration of a bill by the drawee and payee, or of a note by the payee, although it avoids the instrument does not extinguish the debt, and that a drawee who sues an acceptor on a bill, and fails in consequence of having altered the bill in a material part, may still recover on counts on the original consideration. Byles on Bills, 257, 258. 2 Adol. & Ellis, 628. 7 Barn. & [176] Cress., 416. It does not follow however, that, because the frotes were avoided the plaintiff was relieved from the obligation fo produce them, at the trial, for delivery to the defendant. In the case of Glenn vs. Smith, 2 G. & J., 493, it was held, that a creditor holding á promissory note of his debtor, would not be permitted to recover the original indebtedness for which it was given, without producing the note at the trial to be cancelled. The object of this rule is the protection of the defendant from all future liability or inconvenience on or from the obligation, whether valid or void, given for the original indebtedness recovered. If the plaintiff hi this case'were permitted to recover upon his count for money loaned, and still retain the altered notes, upon the genuine signatures to which credit might be obtained, it is obvious that a fraudulent use, or transfer of them, might subject the defendant to the vexation and expense of an'other suit, where an exoneration from liability would be difficult to establish by competent proof. Holding that the plaintiff was bound to produce the notes, in question, at the trial, for delivery to the defendant, before asking the instructions contained in the 6th and 7th exceptions, we concur with the court below in its refusal to grant them. The 8th exception is taken to the refusal of the court to admit evidence offered by the plaintiff, in connection with his production of the notes for delivery to the defendant, after the ease had been announced closed on both sides, and to an instruction which the court gave on an inspection of the notes then produced. The reason stated in the exception for the refusal to admit the proposed evidence, is that it would have been an infraction of a rule of the court. The rule, the application of which is questioned, is not presented in the record, and there is nothing from which this court can presume there was error in its application in restriction of (he right claimed by the plaintiff. If, however, the rule as applied prevented the admission of the proposed evidence, it was the right of the plaintiff to object to any instruction based upon the notes then produced, for the [177] reason that the court could not properly assume, as the ground of an instruction, evidence which, by an application of its rule, it had excluded. The judgment in this case will be reversed. (Decided January 30th, 1862.) Judgment reversed and procedendo awarded.