Rhodes v. Sherrod , 9 Ala. 63 ( 1846 )

GOLDTH WAITE, J.

1. The competency of Mr. Deshler as a witness, is the samo, whether he or the Rail Road Company is considered as the acceptor of the bills of exchange, as the general rule, when the action is directly upon the bill or note, is, that the acceptor or maker is a competent witness for or against any other party. [Cowan & Hill’s Notes, 132; Griffing v. Harris, 9 Porter, 225.] And it seems to follow, that he is so when the suit is a collateral one. One exception is, when the acceptor or maker will be responsible, as well for the costs of the suit in which he is called as a witness, as for the amount of the note or bill; this interest will disqualify him from giving evidence in favor of the party to whom he is thus responsible. [Commercial Bank v. Whitehead, 4 Ala. Rep. 637.] Here, if Deshler is the acceptor, it cannot be said that he is so for the accommodation of the other parties, nor would the verdict in this suit be evidence for or against him', when sued upon the bills. We think the objection to his competency was properly overruled.

2. It is also urged, that the contract imported by the drawing and indorsing of the bills, is not susceptible of modification or explanation, so as to let in parol evidence, to show an agreement between the parties, to contribute equally in case the bills were not paid by the company. If this proposition is correct, it will be difficult to- account for the use of the term accommodation acceptor, or indorser, as applied to different parties on the same bill. In, the English courts, if the accommodated person sues his accommodation indorser, or acceptor, the defence is put on the ground of a failure of consideration, and the party cannot recover, though a third person giving value for the bill or note, previous to its maturity may. [Chitty on Bills, 79 to 82.] In this view, the question as to the admissibility of parol evidence, to explain the writing, does not arise, as the. matter of consideration is always open to evidence, notwithstanding the character of the instrument, or the insertion of the usual words of value received. [Cowan & Hill’s Notes, 1458, and cases there cited.] If then, the suit was directly upon the bills, it would be proper for the defendant to show, that as between the plaintiff and himself the contract was supported by no sufficient consideration, or by one only reaching to a part of the sum sued for, and the plaintiff could only recover the sum actually advanced for the defendant. [Chitty on Bills, 81, and cases there hi ted.] If the defendant could thus have the benefit of the agreement, which, as between him and the plaintiff, attaches itself to the consideration of the bills, there is no reason why the plaintiff, when suing on the money counts, should not have the /same benefit. Indeed, all these questions, as between sureties, are entirely independent of the form of the instrument, and irrespective of the manner in which the names appear ; and the true relation between the parties may be shown by parol evidence. [Cowan & Hill’s Notes, 1466, and cases there cited.]

, It is supposed by the counsel for the plaintiff in error, that the position assumed by them is sustained by the recent decision of Tankersley v. Graham, (8 Alabama Rep. 247.) There, however, the attempt was to sbow that the contract implied by the blank indorsement of a note was secured by a parol understanding, by which a different liability would have been created. It was, in effect, precisely the same principle as held in Free v. Hawkins, [8 Taunt. 92,] cited by the plaintiffs ; but the distinction between those cases and this, is, that in them, the attempt was to modify the contract, while here, it .is to shew, as between these parties, the drawing and indorsing, was invalid for the want of any consideration, and the recovery is sought, on a distinct and different contract for contribution. It is scarcely necessary to add, that our conclusion on this point is, that the effort to prove a contract to contribute rateably, is not obnoxious to the objection, that parol evidence was let in to explain or modify a written contract.

3. On the next position assumed, if it was material to consider the case in that aspect, it may be that we should concur with the counsel, that there is nothing in the evidence set out in the bill of exceptions, showing, or even tending to show an agreement, between these parties, or between the patties to these bills, or to those which previously had been drawn in a similar course of business, that all should contribute alike in case of a loss : but there was no question made to the Court below, as to the effect of the evidence ; or if a question was so made, it does not appear from the bill of exceptions. We cannot say that the cause was not put properly to the jury upon the evidence, because it is certain there was other testimony than is set out. The statement in the bill is “ this was all the evidence deemed necessary to be stated.” Why was no more deemed necessary, unless that which was stated was considered as sufficient to show the error in the points excepted to ? It would be unreasonable, as well as unwarranted, to set aside the verdict, not because there was error in the charge, or refusal to charge, but because we deem the evidence insufficient, when we have no means to know what it was, or how it controlled the case ; and that too, after the Circuit Court had refused a motion for a new trial, based on the ground that the verdict was against the evidence.

4. Most of the other positions assail the charge as being indecisive, contradictory, and calculated to mislead the jury. When a charge is argumentative and evasive, this furnishes a ground of reversal, if it is also calculated to mislead the jury. [Cochran v. Moore, 1 Ala. Rep. 424; Smith v. Thompson, 2 S. & R. 49; Powers v. McFarrer, ib. 44;] but if it is merely ambiguous, and on that ground liable to mislead, it is the duty of the party, at the time, 'to require the necessary explanation ; and if he omits to do so, it is no cause for reversal. [Cowen & Hill’s Notes, 794; per Patterson, J., in Taylor v. Williams, 2 B. & Adolp. 845; Carver v. Jackson, 4 Peters’, 81.]

In Toulmin v. Lesesne, [2 Ala. Rep. 359,] an objection was taken that the charge of the Court, though correct, was inapplicable to the case, without a further explanation; but no .decision was made upon it; and Sherrod v. Rhodes, (5 Ala. Rep. 683,) turned on the ground that the Court attempted -to impose terms, as a condition ripon which it would give a particular charge. The judgment was reversed, on the ground that the Court was bound to give or refuse the charge, without imposing terms, though we considered it might properly have refused the charge.

We think it would be extending the rule greatly too far to say, that the omission to charge fully upon the case, was a reason for reversal, when no charge beyond the one given, was' asked'for. Every charge must be construed with reference to the subject matter, and the cause before the Court. If this just rule is applied here, there is no ground for the objections urged. " The plaintiff had declared that he could not recover upon the bills, but went alone on the common counts ; and it is apparent that he sought a recovery upon the ground of a contract for contribution. Under these circumstances, the Court undertook to explain in what manner the parties would-be liable on the bills, as drawers, endorsers, &c.; but that here there could be no recovery, unless a contract for contribution was made out, or facts and circumstances shown, from which such a contract could be inferred; and afterwards charged that without such, there could be no recovery in this case. We can see nothing here which was calculated to mislead the jury, by reason of the charge being argumentative or evasive. If, as supposed by the counsel, it is ambiguous, it was the duty of the party to have asked the necessary explanation at the trial. We have already said, that if the evidence set out in the bill is all that was before the jury, in relation to a contract for contribution, that it was clearly insufficient; but there is no doubt of the meaning of the Judge, when he said to the jury, that the parties in the case were liable in the same manner as all other parties to bills of exchange, unless there was some contract for contribution. He did not mean, nor could the jury have so understood him, that they were liable without the necessary means taken to charge them, but he intended to put it upon a ground which they could not mistake, to-wit, that they were liable only, if there was an agreement between thepar ties to the bills, to contribute mutually.

It is also urged, that when a Court undertakes to instruct a jury upon the law governing a cause, it should do so fully, and that its omission is error. We have, in a former part of this opinion, adverted to this matter, and endeavored to shew that when the charge given by the Court does not fully cover the cause, it is the province of the counsel to ask the necessary addition or explanation.

5. In the aspect in which the cause was presented to the jury, the fact that the plaintiff appeared on the bills as their last indorser, was certainly not conclusive, as we have shown in the consideration of another part of the cause ; therefore, when the jury was instructed they might give this circumstance such weight in favor of the defendant as they thought proper, no error against him was committed, however objectionable this charge might be, if excepted to by the plaintiff.

6. The amount of the verdict indicates that the defendant has been made liable for one-half of the amount paid by Sherrod, and it is now insisted that the verdict should have been only for one-fourth, assuming Deshler’s testimony as establishing the agreement for contribution, and the fact, as established, that the plaintiff and defendant only, of the parties to the bills, are solvent. It is unnecessary to examine whether this point was decided when this cause was here before, or whether the statute then referred to, [Clay’s Dig. 533, § 12,] governs the present case ; because, however this may be, no question whatever as to the measure of damages, was made in the Court below, so far as is disclosed by the bill of exceptions. It is true, we may infer thát this was the measure acted on by the jury, but if they did so without the instruction of the Court, and were not warranted to do so by the statute, it would be more than questionable if. the Circuit Court, on this ground only, would have felt it to be proper to set aside the verdict, inasmuch as the equitable right to recover the half would be clear, if the contract between the parties indorsing and drawing the bills, was for mutual contribution, in case of loss.

On the whole’, upon the most deliberate consideration, we caii perceive no error in' the questions reserved, which will warrant a reversal.

Judgment affirmed.

Decided at June term, 1845, and omitted by mistake.