Herrick v. Swomley

Grason, J., delivered the opinion of the Court. This suit was instituted by the appellants, the plaintiffs below, upon a promissory note for eight hundred dollars, made by the appellee on the ninth day of September, 1818, and payable to George W. Herrick or bearer, thirty days after dat,e. The note is alleged to have been indorsed by G. W.' Herrick in blank, and the blank was filled up at the trial with the names of the plaintiffs. At the trial of the case below the appellants reserved thirty-six exceptions to the rulings of the Court upon evidence, and offered eighteen prayers, the first, sixth, eighth, thirteenth, fifteenth and seventeenth of which were granted, and the others refused; and the appellee offered thirteen prayers, the fourth, seventh, eighth, ninth, eleventh, twelfth and thirteenth of which were granted, and the others rejected, and the verdict and judgment being for the defendant, the plaintiffs have taken this appeal; and we shall dispose of the exceptions in the order in which they were taken. First Exception. — The plaintiffs proved, by the witness Wood, that he knew the defendant, and his hand-writing, — 455 — and that the note sued on was in the defendant’s handwriting, and that defendant told him that he had drawn the note and signed it. The witness was then' cross-examined by the defendant’s counsel, and was asked “ when he first saw the note?” This question was objected to, and the objection was overruled, and the question was put and answered by the witness, that he first saw the note about fourteen days before its maturity. This forms the subject of the first exception. It is true, that when a witness has been examined by one party with reference to particular facts, it is not competent for the other party to examine him with reference to other 'and distinct facts, not connected with the facts as to which he has been examined in chief, without the party thus wishing to examine him, making him his own witness. Phila. & Trenton R. R,. Co. vs. Simpson, 14 Peters, 448; Griffith vs. Diffenderffer and others, 50 Md., 418. Rut in this case the witness had testified in chief as to his knowledge of the defendant’s hand-writing, had examined the note, and had proved that it was in the hand-writing of the defendant, and the question asked related to the note and tended to elicit from witness what opportunities he had had of examining the signature, and was therefore germane to the subject-matter of his examination in chief, and therefore admissible. Griffith vs. Diffenderffer, 50 Md., 478. Second Exception. — The witness was then asked who showed him the note, and the plaintiffs’ counsel objected to this question, the objection was overruled, and the second exception was taken to this ruling. What we have said with regard to the first exception applies also to this.. Third, Fourth, Fifth and Sixth Exceptions. — In these exceptions evidence was given on the part of the defendant, tending to prove that the note did not pass into the hands ef the plaintiffs until after its maturity. The narr. alleged, that it had come into the hands of the plaintiffs before maturity, and Peter Herrick, one of the plaintiffs, — 456 — had sworn that he received it enclosed in a letter from George W. Herrtck, while he, Peter, was in Minnesota, in the latter part of September, 1818. The narr. having averred that the note sued on had been assigned to the plaintiffs before maturity, the general issue plea put in issue all the averments of the narr. If it could be proved that the note was not assigned before its maturity, then the plaintiffs took cum onere, and the defendant had the right to make all defences to the suit, which he could have made had the suit been instituted by the. payee of the note. In this country, under the general issue, the defendant may offer any evidence tending to show that the plaintiff has no right to recover. 2 Greenleaf’s Ev., sec. 135; Poe on Plead., 512. The evidence offered in the third, fourth, fifth and sixth exceptions was therefore-properly admitted. Seventh and Eighth Exceptions. — The questions asked and the evidence given in response thereto in these two exceptions, were with reference to George W.- Herrick’s business, and the course and manner of that business. This evidence was admissible to show that George W. Herrick was the mere agent of a certain nurseryman, in the State of New York, named Bentley, to sell trees, vines, &c. As he had dealt with the defendant as agent, it was competent to show that fact and others within his agency. But even if the proof as given in these exceptions was inadmissible, it is impossible to see in what respect the plaintiffs could have been injured by it, and the judgment will not be reversed therefor. ■Ninth Exception. — This exception was taken to the refusal of the Court, to permit to be read to the jury, a telegram sent by George W. Herrick to Bentley, on the 2nd November, 1818, to send package to Picking', to the Dell House, at Frederick City. Picking had testified for defendant, to prove that he had seen the note sued on, and to trace its possession down to the time of and after its maturity — 457 — and on cross-examination, had proved that the note had gone through his hands into Bentley’s, and that he had written a dispatch to Bentley to return it, hut that George W. Herrick had signed it. We cannot perceive what possible hearing the telegram had upon the issue to he determined. It was wholly immaterial and irrelevant, and was properly rejected. Tenth Exception. — Howard Hartsock, a witness for defendant, testified that George W. Herrick had been at his house at Union Bridge, from 23rd September, till the 13th October, 1878, having been absent during that time a few days at a time, and his hook showed that he had taken one meal on the 4th October, and was then absent till October 7th. This witness also proved that while at his house, George W. Herrick had held conversations with witness as to what persons at Union Bridge bought notes. He was then asked whether it was before or after the 4th October, that George W. Herrick first left the house of witness? The question was certainly admissible. But as the record does not show that the question was answered, we cannot say that the plaintiffs were injured, even had the question been legally inadmissible. Eleventh Exception. — After the defendant, Swomley, had testified that George W. Herrick had visited the defendant’s house, and sold him grape-vines, to the amount of nine dollars, and taken witness’ order for them, and that he had endeavored to induce defendant to enter upon grape culture, and purchase his grape-vines from said Herrick, hut that he had declined to do so, and had after-wards called to see Mr. Hinks, the attorney, who had visited him with Herrick, and at Herrick’s instance, had drawn up an agreement for Herrick and Swomley to sign, with reference to a partnership between Herrick and Swomley, which he, Swomley, had refused to sign, he was asked to state the conversation he then had with Hinks, in regard to the order which George W. Herrick had in — 458 — his possession from him, Swomley, for $1225.00 worth of grape-vines, the offer being to prove that the witness had a conversation with said Hints, in which he said that if Herrick had any such order from him, it was a forgery; and that Herrick was a maniac on the subject of fruit culture, and that Hints communicated this conversation to George W. Herrick. This question was objected to, but the Court overruled the objection, and permitted the question to be asked and answered, and to this ruling the plaintiffs took this, their eleventh exception. If the note still remained in the possession of, and the property of, George W. Herrick, the payee, to the time of and after its maturity, the plaintiffs took it cum onere, and in this suit by the plaintiffs, Swomley was at liberty, as we have before said, to avail himself of the same defences, which would have been open to him, if the suit bad been instituted by the payee himself. That he was so in possession •at its maturity, some evidence had been offered by Swomley, and the evidence offered in this exception led up to the consideration of the note, upon which the suit was brought, and was admissible in evidence, although George W. Herrick was not a party to the suit, and the evidence admitted, tended to impeach that note. Ringgold vs. Tyson, 3 H. & J., 112. Tioelfth Exception. — This exception was taken to the ruling of the Court below, by which the letter of the defendant, dated October 4th, 1818, was excluded from the consideration of the jury. The letter to which it purports to be an answer had not been offered in evidence, without which the letter of defendant was unintelligible, and the letter which was sought to he introduced referred to vines, which had been the subject .of a letter previously written by George W. Herrick to the defendant, and which Herrick was desirous of selling to the defendant. This letter was written on the 4th day of October, some time after the date of the note sued on, and had no bearing — 459 — whatever on the subject-matter of the suit, and it was therefore properly rejected. Thirteenth Exception. — The defendant was asked by plaintiffs’ counsel, whether he had ever told'Joseph Wood and Dr. J. N. Wood, at the latter’s office, at New Market, on or about October 9th, 1818, that he had gone to Berlin, and bought grape-vines much cheaper than he bought them from Herrick, for the purpose of rebutting evidence of fraud offered by the defendant, the offer being coupled with the further offer of evidence, to show that the defendant gave or executed orders for vines at that time. This evidence was clearly inadmissible. The conversation and the transactions to which the proof, offered and rejected, related, took place some time after the sale alleged to have been made by George W. Herrick to the defendant, and after the note for eight hundred dollars, the cause of action in this case, had been executed, and had no connection with it. Fourteenth and Fifteenth Exceptions. — The time when the defendant first took advice of counsel, as to his liability on the note for eight hundred dollars was utterly immaterial, and the Court was right in refusing to allow the question with respect to it to be put or answered. So also was the question to the defendant, as to where or of whom he purchased the nursery stock he set out in the fall of 1818. These two exceptions seemed to have been abandoned, as they are not relied on in the brief. Sixteenth, Seventeenth, Eighteenth and Nineteenth Exceptions. — -To the questions allowed by the Court to be put to the respective witnesses, no answers appear in the record, and we cannot, therefore, see that the plaintiffs were injured by the questions being put, and consequently the judgment cannot be reversed on these exceptions. Twentieth and Twenty-first Exceptions.- — -The first of these two exceptions was taken to the Court’s refusal to permit an expert in hand-writing, who had never seen — 460 — Picking, a witness in this case, write, to testify whether the signature to the telegram, dated Novembér 2nd, 1878, was in said Picking’s hand-wliting; and the second was taken to the ” Court’s refusal to admit evidence of the defendant’s hand-writing to the order for $1225, which evidence was offered to he, given by an expert, who had never seen Swomley write, but who had for a day, during the trial examined said signature and compared it with the genuine signatures of said Swomley to other papers, which were in evidence. There is some difference in the decisions on these points, and there was also a difference of opinion of the Judges of this Court in the case of Tome vs. Parkersburg R. Road, 39 Md., 92 ; but the majority of the Court held that it was not competent to prove hand.-writing in this way, and we are bound by the decision in that case to hold that the evidence offered in these exceptions was properly excluded. Twenty-second Exception. — We have already stated, in considering the ninth exception, that the telegram, dated 2nd November, 1878, and purporting to be signed by W. H. Picking was not admissible in evidence; and it therefore follows, that any evidence as to whether that telegram was or was not written by Picking, and signed' by him, or whether it was forged, was immaterial, and the question propounded to the witness was inadmissible. Twenty-third, and. Twenty-fourth Exceptions. — The offer to prove that Joseph Wood had offered George W. Herrick $750 for the note of eight hundred dollars was inadmissible. It was not coupled with an offer to prove that the witness, Herrick, had refused the offer, and even if it had been, it was irrelevant and immaterial. The offer contained in this exception as well as the question propounded to this witness in the twenty-fourth exception, as to whether he was the owner of the note sued on, at any time since the 23vd day of September,. 1878, was also objectionable upon another ground. It is true that after — 461 — the plaintiffs had proved the execution of the note, and the assignment of it to the plaintiffs, they might have rested their case. But instead of doing so, they offered proof to show that they received the assignment before the maturity of the note, and having done so, it was incumbent upon them to go on and offer all the proof they had upon this point before resting their case, and were not at liberty to offer further proof as to this point by way of rebuttal. In Dugan vs. Anderson, 36 Md., 588, this Court said, The general rule is that the plaintiff first adduces evidence to support the issue which he is bound to prove, reserving his right to rebut his adversary’s proof if he establishes a prima facie case, with respect to the issues which lie upon him. If, however, the plaintiff at the outset, thinks fit to call any evidence to repel the defendant’s, he will not in general be permitted to give further evidence in reply, for if such a privilege were allowed to the plaintiff, the defendant in common justice might claim the same, and the proceedings would run the risk of being extended to a very inconvenient length.” 1 Tailor’s Ev., sec. 357. Tiventy-fifth Exception. — This exception was not relied upon either in the brief or argument of the counsel of the appellants, and was virtully abandoned. Tioenty-sixih and Tioenty-seventh Exceptions, were also abandoned by the plaintiffs’ counsel. Twenty-eighth Exception. — Mr. Hinks testified, subject to exception, that on the 11th day of June, 1878, he went with George W. Herrick, to see the defendant, and that the defendant stated to him his reasons for declining to enter into partnership with George W. Herrick, in grape culture; and after he had testified to the defendant’s statements made at that time, the Court, on motion of defendant’s counsel, ruled out the defendant’s statements so made to Mr.'Hinks. Swomley, the defendant, had himself sworn that he had made the same statements to Mr. — 462 — Hinks, and therefore, the withdrawal of Mr. Hinks’ evidence, in so far as it related to these statements, did no injury to the plaintiffs. His evidence, so far as these statements of Swomley were concerned, did not tend to prove that the defendant had ever signed or delivered to George W. Herrick, the order for $1225 worth of vines, &c., as contended by the counsel of the appellants. Twenty-ninth Exception. — The question put to the witness in this exception, and which was as to the time it took to carry the mail from Frederick City to Owatonna, in the State of Minnesota, and the answer thereto were properly rejected, as the witness stated that he had no personal knowledge upon the subject, and that all he knew upon the subject had been communicated to him by a clerk in the Baltimore City post office. This was merely hearsay, and clearly inadmissible. Thirtieth Exception. — The evidence set out in this exception, was offered for the purpose of showing that the note sued on, had on it the assignment of George W. Herrick, on the 5th day of October, 1878. The plaintiffs having offered proof in chief of the date of its assignment, ought to have exhausted their evidence on this point, as we have said in treating the twenty-third and twenty-fourth exceptions, and the proof was inadmissible at' the time it was offered. Thirty-first Exception. — The offer in this exception, was the certificate of notes of evidence given in the case of the Commonwealth of Pennsylvania against George W. Herrick, in the Court of Quarter Sessions of the Peace of Crawford County, Pennsylvania, at the February Sessions, 1879. This copy of the notes of evidence has a certificate of a person named W. M. Wallace, styling himself “ official stenographer,” and there is another certificate' of the President Judge, that the notes are true copies of the notes of evidence takeq by the official Court stenographer, in the case referred to, and there is upon this cer — 463 — tificate of tlie clerk of said Court, that the Hon. Pearsoh Church, is President Judge of said Court, and also a further certificate that Charles T. Shaw, who signed the last mentioned certificate, is clerk of said Court. This paper is not, and does not purport, to he, a record of the case named. It is a mere copy of the notes of the evidence given in the case, and there is nothing in the paper to show that the evidence'was taken in a judicial proceeding, further than what may he conjectured from the evidence itself and the certificate of the Judge, that the evidence, of which the paper offered in evidence, contains a true copy, was . taken “ in the case of the Commonwealth vs. George W. Herrick, tried in said Court.” The record of a judicial proceeding of a Court of one State, must he a full record- of the whole proceedings, and certified in accordance with the provisions of the Act of Congress, or our own Act of Assembly, in order to make it evidence in the Court of another State. But the paper offered in this case forms no part of the judicial' proceeding, in contemplation of law. It is nothing more than a copy of the notes of evidence taken by a stenographer, appointed for that purpose, for the convenience of the Court and members of the bar. This Court has said in the case of Ecker vs. McAllister, 54 Md., 371, 372, that “the only proper mode of proving what a witness orally testified to on a former trial, is to examine witnesses for that purpose who heard his evidence given.” The paper offered was, therefore, properly rejected. Thirty-second and Thirty-third Exceptions. — These .two exceptions were not relied upon either in the appellants’ brief or argument, hut were treated, and may he considered, as abandoned. Thirty-fourth Exception. — The answer to the question set out in this exception does not appear in the record and what we have said with respect to the sixteenth, — 464 — seventeenth, eighteenth and twenty-seventh exceptions, applies 4.0 and disposes of this. Thirty-fifth Exception. — -This exception was taken to the striking out and withdrawing from the jury certain testimony of "William H. Hinks, with reference to the possession of the note sued on, from the time it went into the possession of the witness and Mr. Pearre. This proof had been admitted with the assurance of the appellants’ counsel that it would be followed up by further proof that it had never been in the possession of George W. Herrick, after the ninth day of October. This assurance, upon which alone the evidence of Hinks had been admitted, not having been made good, the Court below was right in withdrawing it from the jury. The motion on which it was so withdrawn was not made until after the prayers had been offered, but before they were passed upon by the Court. As it does not appear that the time within which such a motion must be made, is prescribed by any rule of the Circuit Court, we must presume that there is no such rule, or if there is, that the motion was made within the time the rule prescribes. If there is no rule upon the subject, the matter was within the discretion of -the Court. The thirty-sixth and last exception was taken to the rejection of the appellants’ second, third, fourth, fifth, seventh, ninth, tenth, eleventh, twelfth, fourteenth, sixteenth, and eighteenth prayers, and to the granting of the fourth, seventh, eighth, ninth, eleventh, twelfth and thirteenth prayers of the appellee. After a careful examination of the prayers offered by the appellants and the law applicable thereto, we are of opinion that their first, sixth, eighth, thirteenth, fifteenth, and seventeenth, which were granted, gave the law as favorably to the plaintiffs as they were entitled to have it, and that they cannot therefore complain of the rejection of the others offered by them. The proof showed that — 465 — the appellee had stated that if George W. Herrick had in his possession an order for twelve hundred and twenty-five dollars worth of grape-vines, purporting to he signed hy him, the defendant, it was a forgery. George W. Herrick, upon hearing of this statement visited the appellee, told him that he had heard of the statement made by him respecting the order, had consulted counsel who had •advised him that he had good grounds for a suit for slander against appellee, and, after some conversation between them, the appellee gave the note, sued on in this case, to said Herrick, to forbear the suit for slander, and the said order, as also another order for nine dollars worth of vines, were surrendered by Herrick to the appellee. There was proof introduced by the plaintiffs, tending to show that the note was indorsed by George W. Herrick to them for valuable consideration, and before maturity. Proof was offered by the appellee tending to show that George W. Herrick was still the owner of the note in question, that it never was indorsed bona fide to the plaintiffs; that, if indorsed at all, it had been so indorsed to Peter E. Herrick alone, and after its maturity, and that the order for $1225, was never signed by the appellee, but was a forgery. It is perfectly clear, that, even if said order were forged, the plaintiffs were entitled to recover upon the note sued on, provided the note was indorsed to the plaintiffs for valuable consideration before its maturity, and without notice of the facts and circumstance attending its execution and delivery to George W. Herrick. If, on the •other hand, the order was forged and the note was given to George W. Herrick for forbearance to sue the appellee for slander for having said the order was a forgery, and the note was never in fact bona fide indorsed to the plaintiffs jointly, but still remained the property of George W. Herrick; or if indorsed bona fide, but not until after its maturity, the plaintiffs were not entitled to recover upon it. Or if the note was in fact bona fide indorsed to Peter — 466 — R. Herrick alone, the plaintiffs were not entitled to recover upon it in a joint suit, whether the order for $1225 worth of grape-vines was or was not forged, or whether the note was assigned to him before or after its maturity. The appellee’s fourth, seventh, eighth, ninth, eleventh, twelfth and thirteenth prayers were therefore properly granted. The appellants’ second prayer asked an instruction that, if the jury should find that the note sued on had been made by the defendant, and had been indorsed and delivered to the plaintiffs by George W. Herrick, then the law presumes prima facie, that the plaintiffs acquired said note ~bona fide for full value before maturity, without notice of any circumstances impeaching its validity, and that the plaintiffs were the present owners thereof, and entitled to recover the full amount thereof against the defendant, and the burden of proving to the contrary is upon the defendant. It is true, that possession of a note which has been indorsed is prima facie evidence of the holder’s title to it, and of his right to recover upon it. But it is prima facie only, and may be removed by evidence offered by the defendant. In this case the plaintiffs did not rely upon this legal presumption, but introduced evidence in chief to prove that the note in question had been indorsed to them for valuable consideration before its maturity. Proof was offered by the defendant to prove the want of consideration for the note; that it was not indorsed by George W. Herrick to the plaintiffs for valuable consideration and before its maturity ; and that it was indorsed to. Peter R. Herrick, and not to him and the other plaintiff, Burnside, jointly. The jury were to find upon these points upon the evidence thus before them and could not be governed and guided by a mere presumption of law. The second prayer was therefore properly rejected. The third, fourth, ninth, twelfth, fourteenth and eighteenth prayers of the appellants are inconsistent — 467 — with the fourth prayer of the appellee, which announces correctly the law applicable to the facts stated therein, if found to be true by the jury. Their fifth and seventh prayers assert the same proposition of law as is asserted by their first prayer, which was granted, but go further and contains the words, “ although said note may have been obtained by the said payee, George W. Herrick, by fraud, misrepresentation, or threats, or violence, provided such threats or violence were not such as' were calculated to operate on a person of ordinary firmness,” &c. There is no proof in the record with reference to threats or violence by which the execution of the note was obtained, and as in other respects, the plaintiffs obtained the benefit of the law as announced in these prayers, by their first, there was no error in rejecting these. Eor the same reason the appellants’ tenth and eleventh prayers were rightly rejected. (Decided 29th June, 1881.) The plaintiffs obtained by the instruction granted under their eighth prayer all that was asked by their sixteenth, and there was therefore no injury done them by the rejection of the latter. The prayers of the appellee, which were granted, contained correct propositions of law as applicable to his theories of the facts of the case, to support which they had offered evidence to the jury, and they were properly granted. Finding no error in the rulings of the Court below on either the questions of evidence or law, as presented by the record, the judgment appealed from will be affirmed. Judgment affirmed.