Farmers' & Merchants' Bank of Memphis v. Lonergan's Adm'x

Scott, Judge, delivered the opinion of the court. It is evident that this cause was tried in such a way that the judgment cannot be sustained. The plaintiff is a foreign corporation. She attempted to sustain her action by depositions proving the contents of her books. The portion of the depositions containing such testimony, was objected to by the defendant, and it was properly excluded by the court, as the books were not produced, and their absence not accounted for. The defendant in turn offered depositions, tending to make out a defence, proving a portion of the contents of the same books, without any notice to produce them ; this testimony was objected to by the plaintiff, but her objection was overruled and the deposition allowed to be read. The conduct of the defendant in taking depositions to prove the contents of the books and failing to give notice to produce them, was well calculated to mislead and deceive the plaintiff. As the plaintiff’s depositions proved the contents of the books, and the defendant’s did the same thing, and there was no notice to produce them, the plaintiff might well have supposed [50] that the cause would be tried on this evidence; and to reject all her testimony, showing the contents of the books, and admit that of the defendant, was violating all the principles of reciprocal justice. The rule which permits the contents of a paper beyond the jurisdiction of the court, to be proved by parol, has nothing to do with this matter. It is said that by the rule of the court concerning depositions, the exception to the depositions could not be taken at the trial. If the rule excluded the objections of the plaintiff to the defendant’s depositions, why did not the same rule exclude the like objections to the plaintiff’s depositions ? The first instruction asked by the plaintiff was properly refused, because it in effect told the jury that the only questions in the cause were, the waiver of the necessity of presentment, and that the bill remained unpaid. This was a suit by an en-dorsee of a bill of exchange against the administratrix of the drawer. There were no pleadings in the cause. Under such a state of things, every material fact necessary to maintain the action was in issue. It was, therefore, improper to tell the jury, if there was a waiver of demand and notice and the bill was unpaid, that the plaintiff was entitled to a verdict. If the bill was drawn in the course of the partnership business, it was competent for one partner to waive the necessity of a presentment, without any special authority for that purpose. The first instruction given for the defendant was not in as clear language as it should have been. The word " assigned,” when used in reference to the endorsement of a bill of exchange, and as a substitute for the word “ endorsed,” is equivocal, and may mislead. The instruction should have been put in language that would have clearly raised the point intended to be made by it. If Clark had not, by an endorsement in blank or in full, transferred his interest in the bill, it is clear that the plaintiff could not maintain an action upon it. The words written over the blank endorsement of Clark, if it was such, might have been explained, and it might have been shown that they were placed there by mistake, or through inadver [51] tence, and it is a little singular that there was not more evidence in relation to this matter, on the part o£ the plaintiff, than appears in the bill of exceptions. It does not appear that there is any controversy as to the law of the other instructions. With the concurrence of the other judges, the judgment will be reversed, and the cause remanded for a new trial to be had therein.