Lewis v. Kramer , 3 Md. 265 ( 1852 )

Eccleston, J.,

delivered the opinion of this court.

The admission of the testimony of J. B. Williams, a notary public, and of Latimer, his clerk, is the first ground of exception presented by this appeal.

Williams had no knowledge of the matter except what he derived from a memorandum contained in a book produced by him. The memorandum was in his handwriting, taken down from the statement of the clerk. He had no personal knowledge of the truth of the memorandum, but says the record or entry in the book was correctly made as the facts were stated to him by the clerk. Upon seeing the memorandum, Latimer said he had no recollection of the facts contained therein, but was ready to swear to any thing contained in that book. He said it was his duty and the custom of the office, to repeat to Mr. Williams exactly what took place between himself (the witness) and the parties on whom he called with bills or notes, on the day of his calling upon them, and Williams copied these conversations down on the memorandum book literally, as they were stated to him. Latimer also said, it was his habit to read the entries over, the day after they were made, to test their correctness. From these facts he said he was prepared to swear to whatever was in the book, He knew that he could not have stated to Mr. Williams anything but the truth, and that Mr. Williams would have written down nothing but what was stated to him. He further said, that from his habit, he knew he must have read over the statement the day after it was written, and doing so, he would have seen and corrected any error therein had there been any. These, he stated, were the grounds of his certainty.

This evidence is claimed to be admissible, because the entry was made in the course of official business. But if for no other reason, it is defective on account of the fact that the transaction stated in the book does not appear to be a matter within the knowledge of Williams, the writer of the statement. And we are not even permitted to draw the inference, that it was known to him personally because his duty required him to know it, for if distinctly appears that Williams made the entry upon information given him by the clerk. As the entry of the principal, it is clearly nothing more than hearsay. And it cannot be considered as an entry of the clerk, having full knowledge of the demand. It is true, he says it was his habit to read over such statements the day after they were made, for the purpose of testing their correctness, and from that habit he is very confident he must have read over the one now under consideration. But after seeing the memorandum, he had no recollection of the facts stated, therein; nor does he testify to having any recollection of his ever having seen the statement, bat bases his willingness to swear to its truth, upon the habit, of the office, his own and his principal’s correctness. If Williams had made the demand, or if the clerk had made the entry, a very different question would be presented, hut it is one which we, at present, have nothing to do with.

None of the authorities which have been referred to, in our opinion, sanction the propriety of admitting in evidence this memorandum as an entry, made in the course of professional employment, or on any other ground.

The case of Naylor vs. Semmes, 4 G. & J., 273, can have no material influence upon the present question. That was a suit between a sheriff and his deputy. The usage of the office in regard to returns was relied upon: and on page 276 the court held, that it was competent for the sheriff and his deputies to establish such a practice for the regulation of their own official conduct, but that the usage would not bind third parties.

It can scarcely be necessary for us to say, this memorandum was not properly admitted for the purpose of refreshing the recollection of the witnesses, for they both unequivocally declare, that they have no recollection or knowledge of the transaction but what they derived from the entry. Williams could have no recollection of the facts except as being hearsay, received by him from the clerk, and if he could remember them perfectly as detailed to him, he would not be allowed to give them in evidence. The clerk’s knowledge at the time of testifying was predicated exclusively upon the entry, which he did not make, or recognise as true, except from the habit of the office, and the correctness of himself and his principal. And in the 436th sec. of 1 Greenl. on Ev., it is said: “But where the witness neither recollects the fact, nor remembers to have recognised the written statement as true, and the writing was not made by him, his testimony, so far as it is founded upon the written paper, is but hearsay, and a witness can no more be permitted to give evidence of his inference from what a third person has written than from what a third person has said.”

From the reasons stated we cannot agree with the court below on the first bill of exceptions.

The defendant’s first prayer, set forth in the second bill of exceptions, was correctly refused by the court. If it had been granted the jury would have been fully authorised to have given a verdict in favor of the defendant, because they believed the draft which Lewis gave authority for Robinson to draw, was to have been at ninety days from the 10th instead of the 16lh of April, although they were convinced by the evidence, that Lewis had ratified the transaction subsequently to its occurrence, and with a knowledge of all the circumstances.

The proposition contained in the second prayer is sustained by the decision in 2 Wheat., 66, Coolidge vs. Payson, and should have been granted. Where an implied acceptance is relied on as based upon an authority to draw, previously given¿ a recovery cannot be had against the defendant, as acceptor, by virtue of suck authority, -unless it can be proved that the party discounting the bill, at the time of so doing, or before, saw the authority or knew of it, and discounted the paper upon the faith of that authority. In Coolidge vs. Payson, at page 75, the court say: “Upon- a review of the cases which are reported, this court is of opinion, that a letter written within a reasonable time, before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance, binding the person who makes the promise.” In a former part of the opinion, the learned chief justice states, that a promise to accept is considered as an acceptance, because it gives credit to the bill, and may induce a third person to take it. And if the letter is not shown, its contents can give no credit, to the bill; but if shown, a promise to accept will give' all the credit to tile bill which a full confidence that it will be accepted can give.

This prayer places the responsibility of the party giving authority to draw, upon the ground, that the party discounting either saw it or knew of it. For the purpose of being more explicit, we deem it proper to say, on the subject of knowledge, that where an authority is actually given, and the person discounting is informed of its existence, without his having seen, it, anti discounts the paper upon the credit of the authority, then the promise to accept is equivalent to au acceptance, where the authority has been properly complied with. In Coolidge vs. Payson, the letter had been seen, and that appearing affirmatively, was held sufficient. That being the point in the case, there was no necessity to decide, that no knowledge' short of what was derived from seeing the letter would be sufficient. If such a letter is actually written and a person who is informed of its existence, without having seen it, thinks proper to rely upon such information, no injury is done to the writer. He is only bound to fulfill the promise he has made. And when a person is told there is a letter of this description when, in truth, there is none, if he acts upon the belief of what he has heard, he will be the loser and not the reported writer. ’

For the reason assigned in regard to the first prayer, we think the court were right in rejecting the third and fourth. They leave out of view, entirely, all consideration of any subsequent ratification of the transaction, with a knowledge of the circumstances.

By the fifth prayer the court were asked to instruct the jury, “that at the time of the plaintiffs’ discounting the draft in controversy, the only promise of Lewis to accept, which is disclosed by the testimony, was contained in the letter of April 10th, and was a conditional one.” There certainly was not a particle of evidence to prove any other promise to accept, at the time alluded to, except that contained in the letter, which, in our opinion, was clearly a conditional promise, and therefore the prayer should have been granted.

The sixth and seventh prayers are so very similar in principle, that they were jointly considered, by the counsel for the appellant, in argument, and we are disposed to pursue the same course. Both these prayers, virtually, contain the proposition, that the authority given to Robinson by Lewis to draw on him, was given for certain purposes and on certain conditions, disclosed in the letter of 10th of April 1849, which had been seen by, or was made known to, the plaintiffs, before they discounted the draft, and that they could not recover under the circumstances disclosed in the evidence, unless, as .stated in the sixth prayer, “the defendant subsequently waived his right of objection;” or unless, according to the seventh prayer, “these conditions were subsequently waived, or their non-performance consented to by the defendant.” It may be, that in point of fact the defendant never did waive his right of objection, or consent to the non-performance of the conditions contained in his letter, and that consequently he was not liable as acceptor, yet if ho received the sum of $550 from the plaintiffs, through Robinson, with a knowledge that this money was raised upon the draft in controversy and sent to him, with the expectation and belief, that if he received and retained the money he would accept the draft, then it would have been error in the court to have granted those prayers. We do not mean to say there is evidence which must have convinced the jury, that the defendant received the $550, with the knowledge and under the circumstances just stated; but there is evidence in the record, legally tending to prove such to be the case.

The authority to draw on Lewis, contained in his letter of the 10th of April, was designed to effect the payment of the note falling due on the 16th of that month, when it became due. And this not being done, the defendant had a right to decline accepting the draft; or in other words, the condition on which he promised to accept not having been complied with, he could not be held bound, as acceptor of the draft, by virtue of that promise.

And as the sum received by him was less than the amount of the draft, his retaining the money, with a knowledge of the circumstances, did not amount to a waiver of his right to decline accepting the draft. Story on Prom. Notes, secs. 281, 282 and 287. But if he knew that the note had not been paid, and that the $550, received by him, had been raised upon the draft and sent to him for the purpose of procuring his acceptance, with the expectation that he would accept, he was bound to return the money if he determined not to accept the draft. And if the jury did believe from the evidence, that the money was received and retained under such circumstances, a verdict, might properly have been rendered against the defendant under the money counts in the nar.

The necessity of a demand upon the maker of a promissory note, so as to render ¡.he endorser liable, as such, to the hoides, may be waived or dispensed with by the iemicr. Receiving from the maker a mm of money sufficient to mee! the noto, oi taking ample security as an indemnity for slip snsn-*, will amount to a waiver of clue presentment. Story on Prom. Notes, sec. 281, Duvall vs. The Farmers Bank of Maryland, 9 G. & J., 47. But receiving a sum less (han the amount of the note, will not, necessarily, operate as a waiver. Nevertheless, the insufficient sum so received “may be recovered by the holder against the indorser, as money had and received to his, the holder’s, ase,pro tanto, in discharge of the note.” Story on Prom. Notes, sec. 287.

Applying the principle of this authority to the present case, these prayers were properly rejected. Admitting the facts on which they were predicated to be entitled to full credit, the court could not say to the jury, the plaintiffs had no right to recover, unless the conditions were waived or their non-performance consented to by the defendant. For even if there was no such waiver or consent, the testimony in the cause tended to prove a condition of things, which, without the waiver or consent, rendered the defendant liable to the plaintiffs. But in speaking thus of the testimony, we wish to be understood as not intending to intimate, in the slightest degree, any opinion as to the influence which that testimony ought to have upon the jury, when considered in connection with all the proof in the case.

In regard to the right of the plaintiffs to maintain the money counts, in addition to the reference to Story on Prom. Notes, see 3 H. & J., 370. 1 H. & G., 265, and 3 G. & J., 375, Penn vs. Flack and Cooley.

The eighth prayer asked ah instruction to the jury, that the plaintiffs were not entitled to recover, if the jury believed that when Lewis received from Robinson the $550, Robinson was his debtor to more than that amount, upon a note then due and unpaid; and should also believe that Lewis applied the money to said debt, and did not intend, by said application, to ratify the act of drawing upon him by Robinson.

From what has been said in relation to the sixth and seventh prayers, it may very readily be perceived, that we do not consider it essential to the right of the plaintiffs to recover, that the defendant intended, by the application of the money in the mapner stated, to ratify the draft. If he received and retained the money with the knowledge and under the circumstances already mentioned, then it matters not what might have been his intention in regard to ratifying the act of drawing upon him, at least so far as relates to the right of the plaintiffs to a verdict under (he common counts. We therefore concur with the court below in the rejection of the eighth prayer.

The ninth prayer has been abandoned by the defendant’s counsel.

The tenth prayer is, “that if the jury believed the letter written by Lewis, dated the 10th April 1849, authorized Robinson to draw a bill on him, dated the 10th of April 1849, for $583.09, and that instead of a draft, bearing that date, one was drawn, dated the 16th of the same month; and if they further believed, that the figures in the authority to draw were altered from the 10th to the 16th, either by Robinson or by the plaintiffs, without, the knowledge or consent of the defendant, then the plaintiffs were not entitled to recover, although the jury believed that. Robinson received of the plaintiffs, for the draft in question, a check for the sum of $556 on the Exchange Bank, which he took to said bank and procured in bank notes, and afterwards went to another bank and obtained for (lie same a certificate of deposit for $550, which he sent to the defendant, in his letter of 18th April 1849, unless the jury should believe, that at the time when the defendant, received the sum of $550, he was apprised of the fact of the alteration in such date.” This prayer was also refused and we think properly so. Admitting the facts on which the prayer is based to be all true, and that the defendant did not know of the alleged alteration when he received the money, still he would have been liable under the money counts, if he received the money under the circumstances stated in the former part of this opinion, as being sufficient, to give the plaintiffs a right to recover under those counts.

It is perfectly plain, that when the letter of April the 10th was written, Lewis intended giving Robinson authority to draw on him for the purpose of raising funds to pay the note in bank falling due on the 16th, for $583.09, so as to prevent. the note from being protested. The letter of the 18th April from Robinson to Lewis, which enclosed the money or certificate of deposit for $550, gave the latter information that the note had not been paid but protested; and that the money had been sent to him to be applied to the note. The letter contains the following statement: “I telegraphed you of this being posted, so that you would know how to act when the note comes back to hand. The protest I will include.” And by way of postscript is added: “John Snyder, Esq’r, cashier of this bank, told me to-day, that numbers of parties here could not procure any par funds to meet their notes, and such they have to enter upon protests; ánd he even did not want to give me the certificate of deposit until I explained to him it was for that note returned.” The alteration of the date alluded to, if true, and not known to the defendant, would discharge him from liability, as acceptor, under the written authority. But what justice would there be in holding, that the alteration in the date, without his knowledge, would of itself release him from the equitable claim of the plaintiffs under the common counts, if the jury should believe he actually received and retained the money, knowing it to have been the proceeds of the draft discounted, and those proceeds sent to him to be applied toward the payment of the same note which he designed should be paid by means of the draft authorised by him, on which note the defendant was responsible? If the money had not been received, the alteration, under the circumstances relied upon in the prayer, would have released the defendant from any responsibility.

The defendant’s eleventh prayer was granted.

After rejecting all the prayers of the defendant excépt the eleventh, the court gave an instruction as a modification of the first and second. In this instruction there is error, because the court have assumed, as a fact, that the defendant “received the sum of money mentioned in the letter of Robinson.” The late Court of Appeals, and the present also, have decided several times, that no matter how clear and satisfactory the testimony may be for the purpose of establishing any fact, the court have no light to assume it to be proved, because by so doing the rights of the jury are interfered with.

We agree with the court below in the propriety of rejecting the first, third, fourth, sixth, seventh, eighth, ninth and tenth prayers; but. we think there was error in refusing the second and fifth, and also in the instruction given as a modification of the first and second prayers. The judgment, therefore, will be reversed.

Judgment reversed and procedendo awarded.