Burckmyer v. Whiteford , 6 Gill 1 ( 1847 )

Magruder, J.,

delivered the opinion of this court.

This is an appeal from Baltimore County Court.

The suit was brought by the appellant upon a bill of exchange, in the following words:

Baltimore, 1st January, 1840.

Ninety days after date please pay to the order of David Whiteford, fifteen hundred dollars, which charge, as advised, to account of Your ob’t servant,

Nicholas U. Chapee.

To Messrs. Blum & Cobia, Merchants, Charleston, S. C.

This bill of exchange was endorsed by the payee, the defendant in this suit, in blank, and under this blank endorsement was written, “ Pay to order of Messrs. C. Burckmyer 8f Co., Th. Phenix.” This latter endorsement appears was erased before its second transmission to South Carolina.

The action then was brought by the appellants claiming to be the owner and holder of the bill against the payee, who had endorsed the same in blank. It was incumbent upon the plaintiffs to prove, in addition lo the signature, a presentment of the bill to the drawers, and notice to the defendant in due time of the non-acceptance; the same, it being alleged, was not accepted when presented. Besides the liability of the defendant, the plaintiffs were also to show that a suit against the endorser could be sustained in their name. In the attempt to prove all this, the bills of exception were taken, which give rise to the questions which the court is now to decide.

It appears by the first exception, that after the plaintiffs had offered the proof which it is supposed give them a right to recover, the defendant proved by the cashier of the Western Bank, (by which institution this bill had been negotiated) that the bill was returned to him in a letter of plaintiffs’, dated 26th September, 1840; and that after receiving it, he (the witness) struck out the special endorsement thereon, signed Thomas Phenix, Cashier: and thereupon the plaintiffs’ counsel proposed to ask Phenix to state the reasons which induced him to strike out said endorsement. The court refused to permit this enquiry to be made. For this refusal, the first exception was taken.

It is not perceived by this court that there could be any good reason for refusing to permit the enquiry to be made, unless it be, that the act proved on the part of the defendant was one which could not prejudice the plaintiffs. If it was of any importance in the cause to know who erased the special endorsement spoken of, surely it was but reasonable that the witness should be allowed to state when, why, and under what circumstances, the erasure was made. It might have been done by mistake; it might have been an unauthorized act.

In regard to the second, third, and fourth exceptions, it is to be observed, that they relate either to the liability of the defendant on this bill of exchange, or to the right of the plaintiffs to institute the action in their own name. During a portion of the time between the non-acceptance of the bill, and the institution of this suit, the Western Bank was unquestionably the owner of this instrument, and the proper plaintiff in any action to be instituted upon it. Much of the testimony to be found in these bills of exceptions was offered in order to show whén, and under what circumstances, the bank made a transfer of this bill of exchange to the plaintiffs. For this purpose, all that passed between the bank and the plaintiffs relative to the transfer by the former to the latter of this bill of exchange, may be offered in proof, and thus only, is the plaintiffs’ title to it to be shown. Much of the testimony, and of the documents, are connected with the plaintiffs’ chain of title, and is no more obnoxious to objection than other title papers equally res inter alios acta would be. Barney vs. Patterson’s lessee, 6 H. & J. 204. And much testimony is admissible as part of the res gesta, in thus deriving title to the bill of exchange from a person who is no party to this suit.

It will here be noticed that objections found to exist to some of the correspondence which was declared to be inadmissible on a former appeal in this case, (1 Gill, 146,) were upon the second trial removed. A letter or other paper, offered in proof of title from one person to another, though admissible for that purpose, may be utterly inadmissible for others. It may contain statements which, if objected to by the party, who alone can insist that the whole paper be read, ought to be excluded. In the former case, each and every part of the letter was in despite of objection admitted. In this case, the whole and every part of it was rejected. For this, the plaintiffs took the three several exceptions—and of this have they not a right to complain.

It is thought that they have, and that much of this testimony was admissible to prove the title of the plaintiffs to this bill of exchange. These are “ surrounding circumstances,” constituting a part of the res gesta, which were cotemporaneous with the principal fact under consideration. The transfer of this bill by the owner of it, at a particular period, to the plaintiffs, or to some other person from whom they derive title, and the admissibility of them is to be determined by the judge, according to the degree of their relation to that fact, in the exercise of his sound, discretion. 2 Greenleaf on Evidence, sect. 108.

Much, indeed, of the testimony to be found in the bill of exceptions might have been omitted, if the defendant did not require it to be read in connection with the rest; but, in this case, the defendant selected no part or sentences as inadmissible,—but the court excluded especially in the fourth exception the w'hole testimony, even that of Phenix, in relation to the delivery of the bill of exchange to Mr. McMahon, and that of Mr. Collins, in relation to his being in possession of the bill as counsel for the plaintiffs. Such evidence this court thinks, wras admissible for the purpose for which it was offered. That last spoken of was produced in order to show that the plaintiffs, by their counsel, were in possession of the bill of exchange at the time of instituting the suit; and if believed by the jury, it is thought, proved the plaintiffs to have been rightfully in possession of it.

The holder of a bill of exchange still has such a possession of it as will enable him to sustain an action in his own name, although he, or his agent, has left with the attorney of the plaintiffs the note, in order to bring suit thereon. Phenix, in delivering this instrument to Mr. McMahon, was the agent of the plaintiffs, and had the same in his possession, in order to make, if it could be made, a settlement with the defendant. The power to compromise, which he had, was given him by the plaintiffs, and could be derived from no other person. “If the note, after being endorsed in blank, is delivered in pledge by the payee, this will not prevent the payee from suing upon it in his own name, or again transferring it.” 2 Greenleaf on Evidence, sect. 168. And see 7 Greenleaf ■$ Reports, 28.

It appears by the last exception, that the plaintiffs next prayed the court to instruct the jury that there is evidence in this cause from which the jury may find a sufficient interest in the plaintiffs to maintain this suit; and that the defendant had notice of the protest for non-acceptance of the draft or bill in suit on the eleventh or thirteenth day of January. This instruction, also, the court refused to give.

Upon the former appeal, 1 Gill, 146, the court said—not only that a bill payable to bearer, or payable to order, and endorsed in blank, will pass by delivery, but that the bare possession is prima facia evidence of title, and that possession of such a bill will entitle the holder to sue.

Again, possession of a note endorsed in blank, will enable the party having it to maintain the action, unless mala fides be proved. Courts of law will never enquire whether the plaintiff sues for himself, or as trustee for another, nor into the right of possession, unless on an allegation of mala fides. There is, in thei4.opinion of the court, proof that the plaintiffs had an interest in this bill, which authorized them to demand the amount sued thereon, and to maintain a suit therefor.

With respect to the second branch of the prayer, it might have been that the jury might infer from the proof that due notice was given of the non-acceptance—but it is that notice was. received on the 11th or 13th January. It appears, however, that the 12th was on Sunday—and therefore, notice on the 13th of non-acceptance was in time.

We think that the jury might have inferred that the defendant had due notice of the non-acceptance: of course, the court below erred in refusing to give the instruction.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.