Sittig v. Birkenstack

Brent, J., delivered the opinion of the Court. The cause of action in this case is a promissory note for $1500, signed by H. Austermuhle, and endorsed by Catherine Austermuhle, Henry Sittig and Henry Birkenstaek. The declaration contains nine counts — the first six being the [277] common money counts, the seventh charging the appellant as maker, the eighth as guarantor, and the ninth as endorser, with notice of presentation and non-payment. After the testimony was closed, two prayers were offered by the plaintiff and eight by the defendant. The first prayer of the plaintiff was granted, and the first, fourth, fifth, seventh and eighth prayers of the defendant, as it appears by the record, were rejected. The record also discloses that these prayers of the defendant, with the exception of the first, were eonoeded by the plaintiff’s attorney. The rule is well established, that what is admitted or conceded to be law by the plaintiff or defendant, as the case may be, at the trial of a cause, is binding upon him, and if it is accepted by the other side, it becomes the law of the particular ease. This doctrine is very concisely stated in The Balt. & Ohio R. R. Co. vs. Resley, 14 Md., 442, where it is said : “ What is admitted to be the law of a case cannot be gainsayed before the jury.” The learned Judge below stated that these prayers should not be used as the law of the Court, and very properly added, “ but that the Court would not interfere with any admissions of the parties in relation thereto.” It would have been inferred from this statement of the rule, that the prayers had been allowed to stand upon the admissions of the parties, and had not been acted upon by the Court with a view either to their rejection or approval, but as tl\ey are marked “ refused,” and also so certified in the hill of exceptions, we are obliged to treat them as having been rejected by the Court, and to conclude that the defendant did not have the benefit of them before the jury. To this he was clearly entitled, and as there was error in depriving him of the benefit of prayers which the plaintiff had conceded, the judgment must be reversed and the case sent back for a new trial. The plaintiff was not entitled to have the first prayer, which he offered, granted by the Court, for it is inconsistent with the third prayer offered by the defendant, which he con [278] ceded, and which is not included among those rejected by the Court. That prayer instructed the jury, that the plaintiff was entitled to recover if they found from the evidence that the defendant had written his name upon the back of the note as maker, while the third prayer of the defendant instructed them “that the plaintiff cannot recover on the seventh count in his declaration, because by said count the defendant and one H. Austermuhle aré set forth as joint makers of the promissory note therein described, but that no such note was offered in evidence, &c.” This is the only count in which the defendant is charged as maker of the note, and the concession by the plaintiff of the correctness of this prayer, so entirely opposite to the one he presented, is a sufficient reason why his prayer ought to have been rejected. The exception to the refusal of the Court to grant the defendant’s first prayer, was very properly abandoned at the hearing, and the only remaining exception to be considered is the first, which is taken to the admissibility of evidence. The plaintiff having proved that Austermuhle had applied to him for a loan of $1500, and that he, having no money, had procured a Building Association note for $1500, which he gave Austermuhle in exchange for the note sued upon, and that Austermuhle had obtained the money upon it from the German Savings’ Bank on his, the plaintiff’s account, then offered in evidence a Building Association note for $1500, which was cancelled and crossed with lines of red ink. To the introduction of this note as evidence, which was admitted by the Court, the defendant excepted. It is very apparent that this note was introduced to show the consideration of the note upon which the plaintiff was seeking to recover, and its cancellation was no objection to it for that purpose. The note held by the plaintiff prima fade imported consideration, and there was perhaps no necessity for offering proof to support it, as its validity in this respect had not been attacked by the defendant. But as there could be no objection in proving positively, if the plaintiff so desired, what already [279] appeared presumptively, the Court could not refuse to admit the testimony, provided it was accompanied with the further proof that it was the identical note upon which Austermuhle had obtained the money. This further proof does not appear to have been given, and, as the note stands in the record, it seems to be wholly unconnected with the case, and ought not, therefore, to have been admitted in evidence. But as there is no positive injury, which we can perceive, done to the defendant by its introduction, the judgment would not be reversed upon this exception. (Decided 28th. February, 1872.) The rulings of the Court upon the second prayer of the plaintiff and the second prayer of the defendant, are obviously correct. But for the error, as before stated, in rejecting the prayers of the defendant which had been conceded by the plaintiff, the judgment below will be reversed and a new trial ordered. Judgment reversed and new trial ordered.