Lewis v. Shepherd ( 1881 )

Mr. Chief-Justice Camber,

delivered- the opinion of the: • court.

Edwin M. Lems, trustee- of the estate and: effects of Jay' Cooke & Co., brings this action, in assumpsit upon a promissory note executed by the defendant, Alexander R. Shepherd,, to himself arid by him endorsed.- In the hands of Jay Cooke & Co-the note underwent a very serious alteration.. As originally executed it was a note without interest. As-sued upon and presented in proof it was a note with interest-at 9 per cent., a very material and serious change in the* promise-; a change of such' a character and import that the-justice trying the case would not allow the note to-be given; in evidence as a promise of the defendant- The note having* been thus taken fr&m the consideration of the jury, the* special count in the- declaration predicated upon it -was1 abandoned, and the plaintiff passed* over to* the common-count for money bad and received- Here tli'e court permitted the plaintiff to enter the field'of proof, to* substantiate* bis claim,-which was based, we suppose,upon the consideration; of the note ; and- the first difficulty presented in considering; the ruling of the court below, is that, attending the common count, was- a hill of particulars consisting of nothing more* than this very note which had been made- the subject of the* ■special count. Now how this note could be good for nothing in one place and good for something in another is the puzzle ■.that we have had to resolve,; and we have -come to the con-•elusion that the common counts with this note annexed as ;a bill of particulars is a Little worse 'than the special count •; ■for it is patent from the testimony in the ease that the defendant’s liability was a liability under his undertaking as an endorser, which does not imply a further liability by reason •of the money that was advanced upon the note. In addition to which the common count upon which the recovery was had was damaged with the same Infirmity, by reason -of ;the altered note as a bill of particulars, .that existed in the special count predicated upon this same' note. We consider these objections fatal.

The case is remanded for a new trial, with liberty to the plaintiff to amend as he may be -advised.