Gisriel v. Burrows ex rel. Bainbridge

Fowler, J., delivered the opinion of the Court. John Burrows, the plaintiff below, sued the defendant, Jacob Gisriel, upon thirteen promissory notes, but there was a recovery upon only seven of them, namely, on the — 372 — four notes dated September 6, 1886, and three others dated November 1st of the same year. The declaration was amended by leave of Court during the trial by adding counts upon six other notes, all dated March 7, 1887, but there was no recovery on these last-named notes. When leave was granted to amend the narr. the defendant objected thereto, and his objection being overruled he excepted. He then pleaded three pleas to the additional counts contained in the amended narr., the first of which was demurred to by the plaintiff, and the demurrer sustained and issue joined on the second and third pleas. Both plaintiff and defendant have appealed. All the notes in the case are of the same form and style, mutatis mutandis, as the following one : §300.00. Baltimore, March 4th, 1887. On August 1st after date I promise to pay to the order of John Burrows, three hundred dollars, with interest at 6 per cent., value received. 1100 N. Fremont St. Chas. F. Klunk. Due Aug. 1 — 4. Endorsed, Jacob Gisriel, John Burrows. Among the notes sued on there were six — two of which are dated March 1, and four March 4, 1887, respectively; and during the course of the trial it appeared from the testimony of the plaintiff that the six notes of March 7, 1887, offered in evidence, but not sued on in the original narr., were for the same amounts and the same consideration as the six notes of March the first and fourth. When the notes of March the seventh were offered in evidence the plaintiff disclaimed all right to recover upon them, if he should recover upon those of March the first and fourth, and likewise he disclaimed any — 373 — right to recover upon the latter if he should recover upon the former. After the evidence was all in, and argument had upon the prayers, the trial Judge announced that he would grant defendant’s fourth prayer. Now, this prayer asked the Court to instruct the jury that if they should find that the notes of March 7 were given in lieu of those sued on in the original narr., and dated March first and fourth, respectively, and were so accepted by the plaintiff, that then he could not recover under the pleadings and evidence in this case on said notes of March first and fourth. In order to meet this exigency the plaintiff asked leave to amend Ms narr. by adding counts on the notes of March 7th. There can be no doubt he had a right to amend any time before the jury retired. Art. 75, section 34, of the Code. The first plea to the amended narr. alleges, in substance, that the notes of March 7th were given for the same consideration as the notes of March first and fourth, and that the plaintiff having elected to proceed on said last-named notes, he is precluded by such election from suing on said notes of March 7th. The Court sustained the demurrer to this plea. We think it is clear the plaintiff had a right to sue on both sets of notes in the one action. He could, of course, recover only on one set of notes, if it should be ascertained by the evidence that both sets were given for the same indebtedness. And the Court so instructed the jury by its fourth instruction, which is not excepted to. We find no error, therefore, either in the action of the Court in allowing the amendment, nor in its rulings on the demurrer. The defendant, however, was not injured by these rulings of the Court below, for the jury found for him on the additional counts. The defendant’s first bill of exceptions raises the question as to the admissibility in evidence of the printed — 374 — record in the case of Burrows vs. Klunk, reported in 70 Md., 451. The ground on which it is claimed that record should be admitted in this case is that it contains evidence on the question of fraud, and to show the relations that existed between Klunk, a witness in both cases, and Burrows, who is plaintiff in both cases. But,» clearly that record could not have been admitted for any such purpose. That case involved the validity of certain notes entirely separate and distinct from those here in question, and the evidence produced to maintain the issues in that case cannot possibly have any relevancy whatever to the issues in this. But even if the witnesses in Burrows vs. Klunk gave any testimony relevant or material here, they should have been called and examined in this case in the usual way. This brings us to the consideration of the rulings of the Court on the prayers offered on both sides, which rulings form the subjects of the remaining exceptions taken by both plaintiff and defendant. The defendant excepted to tbe granting of the plaintiff's second, third, sixth, seventh, eighth and ninth prayers, and to the rejection of the first and second of the defendant. Much was said in the argument in regard to the rights and liabilities of guarantors and guarantees, and the supposed application of the Statute of Frauds to the facts of this case, but we think it is apparent, from all the evidence before us in the record, that the defendant Grisriel, if responsible on the notes sued on, must be held as an endorser. The defendant proved that "he signed his name on the back of said notes at the request of C. F. Klunk, as endorser of the same, and with no intention of becoming a joint maker or a joint and several maker of the same with Klunk; that said Klunk requested him to endorse said notes at the instance of the plaintiff; and that Klunk — 375 — and the plaintiff hoth understood that it was the intention of the defendant to become endorser of said notes when he signed his name upon the back thereof, and that the said notes were accepted by the plaintiff with this understanding.” And the plaintiff himself, on cross-examination, testified substantially as follows: That the defendant owed him only as endorser for Klunk, and not individually; that the understanding between them was that he took the notes from Klunk because the defendant was endorser; that the defendant was to be endorser, and not joint maker, and this was the distinct and clear understanding. Under this state of proof the Court instructed the jury that if they believed from the evidence that the defendant wrote his name on the back of each of the notes dated, respectively, the 6th September and the 1st November, 1886, while the same were in blank, and delivered them in that condition to the witness Klunk, and that Klunk filled up the notes as they now are, and delivered them to the plaintiff, that then the plaintiff is entitled to recover thereon. It is clear, however, as we have seen from an examination of the proof in the case, that the defendant, according to the understanding of all the parties to the notes at the time they were made, was to be an endorser, and not a joint maker or original promissor. And as such endorser he cannot, of course, be held liable unless he had due notice that the notes had been presented to the maker for payment, and were dishonored. As the jury should have been, but were not, so instructed, we think there was error in granting the plaintiff’s prayers, all of which either assume or are based upon the fact that the defendant was original promissor or maker, which is directly in conflict with all the evidence in the case. It will be seen we do not think there was error in rejecting defendant’s first and second prayers, for they — 376 — are based upon the theory that the defendant was a guarantor, while, as Ave have said, it is clear from the evidence on both sides that he was to he responsible as endorser,' and did not assume any liability whatever- as a guarantor. (Decided 19th June, 1890.) We need say but little in regard to the plaintiff’s appeal. The only exception taken by him is to the rejection of his first, fourth and fifth prayers, and the granting of the defendant’s third prayer. And from Avhat Ave have already said in considering the defendant’s appeal, it follows that we see no error in the rejection of the plaintiff’s first, fourth and fifth prayers, for they also assume, contrary to all the evidence, that the defendant is original promissor or joint maker. But, in addition to the reasons already given, it seems clear these prayers of the plaintiff are bad for the further reason that- they all ignore the fact admitted by the plaintiff, that he could not recover both on the notes of March 1st and 4th and those of March 7th. The plaintiff also excepted to the granting of the defendant’s third prayer, but this prayer was AvithdraAvn. A supplemental brief was filed by the plaintiff contending there was error in granting defendant’s fifth prayer, but he took no exception to this action of the Court, and the questions presented by the supplemental brief are, therefore, not before us on this appeal. Reversed, and remanded for new trial.