Wood ex rel. Wallace v. Gibbs , 35 Miss. 559 ( 1858 )

HANDY, J.,

delivered the opinion of the court.

The plantiff in error brought this action to recover the amount of a bill of exchange, drawn by the defendant’s intestate in these words: “ $5000. Messrs. Cuddy, Brown & Co., New Orleans, please pay John W. Wood five thousand dollars.

11 Feb. M, 1856. Jambs R. West.”

The defendant pleaded the general issue, with notice of failure and want of consideration, and that the drawer was not in a condition, from sickness or other cause, to make a valid contract at tbe time the bill was drawn. Upon these issues, the case was tried and a verdict rendered for the defendant. During the progress of the trial, the plaintiff excepted on various grounds to the ruling of the court, and also moved for a new trial, which was not granted, and to that exception was also taken. These several rulings are now assigned for error here.

The first of these is, the refusal of the court to grant the plaintiff’s motion for final judgment against the defendant, upon overruling the defendant’s demurrer to the original declaration.

It appears that this demurrer was filed at May term, 1856; and, at May term, 1857, and before any disposition was made of it, the plaintiff filed an amended declaration, to which the defendant pleaded the general issue, with notice as above stated; and, at November term, 1857, the demurrer to the original declaration . was overruled, and thereupon the plaintiff moved for judgment, unless the defendant would file an affidavit of merits in his defence, which motion was overruled. This was undoubtedly correct. The amended declaration superseded the original one, and became the ground upon which the case was to be tried. The pleas to that were filed before the demurrer was overruled, and the action upon the demurrer was therefore mere matter of form. The case then stood at issue upon the amended declaration, and there was no necessity for filing further pleas, and no application to do so.

The next error assigned, is the refusal of the court to allow the , plaintiff to read in evidence, the answers to the cross-interrogatories in the deposition of the witness Drown.

This deposition was taken on the part of the plaintiff; and, in presenting his evidence, he read the examination in chief of this witness, but did not read the cross-examination. After the defendant had closed the evidence on his part, the plaintiff then offered to read the cross-examination; but, upon objection by the defendant, he was not permitted to read it.

The plaintiff had the right to read this evidence, if he thought fit, in opening his case; but, if he declined to do so, it was matter within the discretion of the court whether he should make use of it after the case was closed on the part of the defendant. The purpose for which it is stated to have been offered was, to show an excuse for the failure of the plaintiff to present the bill for acceptance to the drawee in due season. But if that was material in the case, it should have been shown in the first instance, and it was not evidence of a rebutting nature. Hence it was not error to refuse its admission at the stage of the case at which it was offered. It, however, appears to be entirely immaterial to the matter in controversy. The defence did not rest upon the ground that the bill was not presented to the drawee in due time; and it is clear, from the evidence, that if it had been presented in due time according to custom in such cases, it would not have been accepted or paid. No injury, therefore, is shown to the drawer from the failure to present it, and an excuse for the non-presentation was immaterial to the merits of the case. This ground of error is therefore untenable.

The third error assigned, is the admission of the testimony of Griffin and other witnesses, to show a want of consideration for the bill, and that it was obtained by the payee from the drawer whilst the latter was incapable, from intoxication, of making a valid contract.

In support of this objection, it is insisted that the bill upon its face was payable in Louisiana; and, as by the law of that State, the holder of commercial paper takes it discharged of defects upon the grounds relied on in this case as a defence, unless it be shown that he is not a bona fide holder for a valuable consideration without notice of the infirmity in the paper; and, as the usee of the plaintiff was shown to have paid value for it, and no notice of the infirmity of it was brought home to him, it is insisted that the de-fence set up was not competent to invalidate the title of the usee, and that this evidence was inadmissible.

This proceeds upon the assumption, that the bill, as between the drawer and the payee, was, according to its tenor, payable in the city of New Orleans. But this was not the legal effect of the bill as it was drawn, or as it is presented in this case. It was simply a written request, by the drawer, that the drawees would pay the sum of money specified in it. If it had been accepted by the drawees, they would thereby have become bound to pay it according to the law of the place of acceptance, or the place of their commercial domicil, where it was addressed to them. But while it remained in tbe form in wbicb it now appears, it created no obligation upon tbe drawer to pay it in New Orleans. Story on Bills, § 154. It was merely a contract, that if the drawees did not pay it in New Orleans, be would pay it, but not in New Orleans. His obligation is governed by tbe law of tbe place where tbe contract was made; and as no place of payment is specified, in tbe event that tbe drawees failed to pay tbe bill, tbe place where tbe bill was drawn must be presumed to have been tbe place where it was intended to be paid in such event.

As between tbe drawer and payee, or subsequent bolder, tbe contract of tbe drawer as to tbe form, nature, obligation, and effect of the bill, is governed by tbe law of tbe place where tbe bill is drawn. Story on Bills, § 181. And this is not affected by tbe fact, that the bill is intended to be paid by tbe drawees at tbe place specified for payment by them. For the contracts of tbe different parties, drawer, acceptor, and indorser, may all be different, as each is governed by the lex loci contractus. Ib. and § 153.

Tbe case of Fellows et al. v. Harris, 12 S. & M. 462, is relied on in support of tbe view that this bill must be considered as payable in Louisiana, and is not governed by our laws. Tbe bill, in that case, appears to be of the same tenor as tbe one under consideration ; and it was indorsed by the payees to tbe plaintiffs. It was drawn by tbe drawer for tbe accommodation of tbe payees, who used it by indorsing it to tbe plaintiffs as collateral security for money due by tbe payees to tbe plaintiffs. The substance of tbe decision is, 1st, that as between the drawer and the payees, it was no objection to the consideration that he drew tbe bill for their accommodation ; and 2d, as there was evidence rendering it uncertain whether tbe plaintiffs gave value for it, that tbe evidence offered by them to show that they made advances to tbe payees on account of the bill, was admissible; 3d, that if it was transferred as collateral security for a debt due by tbe payees, they had the right to it, and that it was no objection to their title, that tbe bill was taken for a pre-existing debt.

These questions did not depend upon tbe question whether tbe bill was payable in Louisiana, and governed by tbe law of that State; and tbe decision is manifestly correct under our statute in relation to negotiable instruments. Hence the remark made, at tbe conclusion of the opinion, by the learned judge who delivered it, that the bill was to he regarded as one drawn in this State, but payable in Louisiana, should not have the force of a decision of the question that such a bill, as between the drawer and payee, was a bill payable in Louisiana, and governed as to its nature, obligation, and effect by the laws of that State.

We consider it clear, that the bill sued on in this case, is a contract governed by our laws; and, that under the rule established by our statute, the evidence offered by the defendant was competent.

The next error assigned, applies to the instructions granted at the instance of the defendant.

The first instruction, has reference to the incapacity of the defendant’s intestate to make a contract by reason of sickness, distress of mind, or intoxication; and the objection taken to it, is the same as that made to the competency of the evidence above considered, that the bill was payable in Louisiana, and that the plaintiff’s usee, as a holder of it, was not affected by its infirmity as between the drawer and payee. For the reasons above stated, this is no valid objection to the instruction.

The second instruction, — referred to as number three, and marked number four, — is in substance, that if the drawer signed two bills of the same tenor, and for the same amount and consideration, and that the payee delivered up one of them as a cancellation of the contract, and it was so understood by the drawer, that would annul the contract.

There can be no question as to the correctness of this proposition. Rut it is said that the evidence did not warrant it.

It is admitted that two bills were drawn in relation to the same transaction, and that both of them were retained by the payee, who wrote them. And it is in proof, that after the bills were signed, and on the same day, and whilst they were in the payee’s possession, Treadwell, a friend of West, told Wood in the presence of West, that the latter had given him his draft for five thousand dollars, and wanted to get it back, and after some conversation, that Wood put his hand into his pocket, and took out the draft and gave it to the witness, who read it, and saw that it was a draft for $5000, .'sighed by West; and then put it into the fire. Griffin testified, that on .the same day on which the bill was drawn, he was present at the interview between Treadwell and Wood, at the door of West’s room, and heard Treadwell request Wood to give up the bill; and that Wood made some reply, which the witness did not recollect, and went to the bed where West was lying and handed him the paper, and that Treadwell toot it, read it aloud, and then put it into the fire. Wood testified, as a witness for the plaintiff, that he wrote the two bills, and wrote the second because the first one was badly written and torn, and that West told him to write another; that he took both bills, not regarding the first as important. He admits that Treadwell, in the presence of West, requested him to give up the bill; that he handed the one first written to West, and that Treadwell took it and put it in the fire. He further stated, that he gave up that bill, because he did not believe that West wanted the bill last written, and he wished to get rid of the interference of Treadwell.

The evidence tends to show that during these transactions, West was considerably under the influence of intoxicating liquor; and from that cause, and from distress of mind on account of the recent homicide of his son, and on which account he went to Lexington where these transactions took place, that he was incapable of making a valid contract.

Under these circumstances, it was for the jury to determine, whether the demand made upon Wood for the bill, was not intended and understood to be a demand of the bill which Wood held as the evidence of debt against West, and with a view to cancel the contract created by the drawing of the bill or bills, and whether West and Treadwell were not justified in believing that Wood, in giving up the bill, surrendered all evidence of debt against West, arising from the bill or bills. It is evident that it was so regarded by West and Treadwell, and that Wood must have been aware of the object of the demand upon him. If he claimed the right to hold the bill last drawn, he should have asserted that right, under the circumstances; and having failed to do so, he must be taken to have acquiesced in the demand of all evidence of debt against West, created by the bills, and to have induced the belief, that he surrendered all claims founded on the bills. At all events, thd tion was fairly submitted to the jury, under the evidence, j®d the instruction under consideration.

The fifth instruction states, that the bill was not presented for payment in a reasonable time, and therefore, that the plaintiff could not recover, unless the jury believed from the evidence, that West had no funds in the hands of the drawees, nor right to expect that it would be paid. It is objected, that the Court determined the question, as to what was a reasonable time for presenting the bill, and did not submit it to the jury under the facts shown in evidence.

But this point appears to be immaterial to the issue presented. It was clearly shown, that West, by his own acknowledgment, had no funds in the hands of the drawees when the bill was drawn, and that he had none there when it was presented; and that West, the day after the bill was drawn, made known to Wood his want of funds in the drawees hands, and that the bill would not be paid. The instruction, therefore, could have worked no prejudice to the plaintiff; and the defence rested upon grounds altogether different from the failure to present the bill in due season. If it had been a material question, whether the defendant was discharged by reason of the failure to present the bill in due time, there cannot be a doubt but that the facts just stated, brought the case within the rule stated in the instruction, and constituted a sufficient excuse for the failure to present,- for he neither had funds in the hands of the drawees, nor reason to expect that it would be paid; and this was shown by his own admission. Hence, no injury could have arisen to the plaintiffs from this instruction, and it is not ground of error.

The sixth instruction states the mere abstract proposition, that if the plaintiff has transferred the legal title to a bill, he cannot maintain an action upon it. No such indorsement was here shown, and the rule stated cannot be presumed to have had any effect upon the jury, to the prejudice of the plaintiff.

The last error assigned, is the overruling of the motion for a new trial. • The principal ground of error here relied on, is that the de-fence of want of consideration for the bill, or fraud in obtaining it, was not competent against the plaintiff’s usee, as a Iona fide holder for value, and that point has already been disposed of.

As to the sufficiency of the evidence to sustain the verdict upon the material questions in controversy, the case is one showing conflicting testimony, and depending much upon the weight to be given to the statements of the respective witnesses, and upon the infer-enees which might be drawn from facts proved, and from the conduct of the parties. Such cases are peculiarly within the province of the jury, and verdicts should not be disturbed in them, but for clear and manifest error in the ruling of the court. There being no such error in this case, and the verdict being such as the jury might properly find upon the evidence, the motion for a new trial was properly refused.

Judgment affirmed.