Bannon v. Warfield

Alvey, J.,

delivered the opinion of the Court.

This is an action by the appellee as indorsee of a promissory note, drawn by James Revell on the 8th of October, 1868, payable to the order of the appellant, ten days after date, for $1440, and by the appellant indorsed to the appellee.

The pleas were, never indebted and never promised, as alleged, and that the cause of action did not accrue within three years before suit brought.

The making and endorsement of the note were admitted. The appellee then gave evidence of payments on the note by the appellant, for the purpose of removing the bar of the Statute of Limitations, and thereupon rested his case.

The appellant then gave evidence tending to prove that he was the agent of the appellee, for the investment of his money in the particular case, and that the promissory note in controversy was indorsed by the appellant and transferred to the appellee only- as a temporary security for the money which the appellant was authorized to invest for the appellee ;'the agreement and understanding being, according to the evidence of the appellant, that the note should be surrendered to him upon his procuring the proper security by note and mortgage from the party to whom the money was loaned, and delivering the same to the appellee. Whether the note in controversy was indorsed and delivered to the appellee for the • purpose and under the agreement stated and insisted on by the appellant, became a leading question in the cause, and in reference to which the evidence as given by the parties was quite conflicting.

The appellant, deeming it essential to his defence to show that the investment of the money was judicious, and secured by mortgage of a farm of adequate value, offered evidence by himself, and another witness, of the value of the farm in the fall of 1868, the time when he made the loan, as he contends, for the appellee. After the appellant had closed his evidence, the' appellee, in reply,'gave evi- . dence to countervail or rebut that offered by the appellant in respect to the value of the farm, by proving that, in 1868 and 1869, the farm was of less value than the estimate placed thereon by the appellant and his witness. Whereupon the appellant, after the appellee had closed his evidence, in reply, offered to prove by other witnesses than those previously examined, the value of the farm in 1868 and-1869 ; to which the appellee objected, and the Court sustained the objection, and excluded the evidence thus offered ; and this ruling forms tlie subject of the first exception by the appellant.

The question here presented is one of practice, and relates to the orderly manner in which parties are required to introduce their evidence in support of the issues to be tried. The observance of fixed rules upon the subject is of great importance, not only as means of avoiding confusion, but to the fair administration of justice. Much of course depends upon the form of the issues joined, and upon whom the onus rests. The parties must not be allowed to break up the evidence they may intend to offer on any particular issue, and introduce it at different stages of the cause in piece meals, as the varying emergencies of the case may seem to require. Such practice would not only greatly prolong trials, but would frequently lead to surprise and injustice. According to the well established practice, the plaintiff, having the right to begin, must put in the whole of his evidence upon every point or issue which he opens, and the defendant then puts in evidence his entire case ; and in reply the plaintiff is limited to such new points and questions as may be first opened by the defendant’s evidence. 1 Greenl. Ev., sec. 469 a. (12 ed.) From this general rule there may be departures to meet the requirement of particular cases ; but the entire question, as to the mere order of proof, and under what circumstances evidence should be admitted or rejected when offered out of the proper order, in the absence of some positive rule of Court upon the subject, must be allowed to rest in the discretion of the Court directing the trial, as the tribunal best qualified to judge what the justice of the case may require in these respects ; and hence from the rulings on such questions no appeal will lie. Phil. & Trenton P. Co. vs. Stimpson, 14 Pet., 448, 463; Salmon vs. Rance, 3 S. & R., 311, 314; Duncan vs. McCullough, 4 S. & R., 482; Frederick vs. Gray, 10 S. & R., 182; 4 Phill. Ev., Cow. & Hill’s notes, p. 708.

Here the onus of proof of all the facts necessary to constitute a discharge from, or to avoid, the liability created by the endorsement of the note, was upon the appellant; and having gone into his proof in respect to the value of the farm, he was bound to offer all his evidence upon that subject before he closed his case, and the appellee was allowed to offer rebutting evidence. If, therefore, this were a question proper for review by this Court, we should not hesitate to declare our full assent to the ruling of the Court below as presented by this exception.

But it is contended that, as the appellant confined the evidence offered by him to the value of the farm in the fall of 1868, the evidence offered by the appellee enlarged the inquiry in point of time, by referring to the value of the farm in 1869, as well as in 1868, and that, therefore, he ought to have been allowed to rebut the appellee’s evidence as to the value in 1869. To this, however, it may be answered, that the only purpose for which reference could have been made to the value of the farm in 1869, was to fix the value in the fall of 1868; — for any other purpose'it was wholly immaterial. If the evidence was immaterial it ought to have been dealt with otherwise than by rebutting it. It is a well settled rule of evidence, that the introduction of improper or immaterial evidence on one side does not justify the introduction of irrelevant matter on the other; Walkup vs. Pratt, 5 H. & J., 56; Mitchell vs. Sellman, 5 Md., 385; and here the value of the farm in 1869, except as it would be evidence of its value in 1868, the time when the loan was made to its owner, was quite irrelevant.

The second exception taken by the appellant was to the granting of the third and fourth prayers, in a series of seven, offered by the appellee ; and to the refusal of the fifth prayer, in a series of seven, offered by the appellant. All the other prayers on the part of the appellee were rejected, and all those on the part of the appellant, except the fifth, were granted by the Court.

By the appellee’s third prayer the jury were instructed that, although they might believe the note sued on was made and delivered to the appellant, and that he endorsed the same, upon the terms and conditions testified to by him, yet the existence of such condition could not operate to impair the liability of the appellant as endorser of the note, unless the jury should believe that the appellee accepted the same with full knowledge of such condition, or unless he was afterwards informed of such condition, and thereupon agreed to hold the note subject thereto. As we understand this instruction, the condition referred to was that upon which the appellant testified he had accepted the note from the maker, and not that upon which the note was endorsed by the appellant to the appellee. The prayer in this respect is not as clear as it ought to have been. But its context would seem to indicate our understanding of it to be correct; and so it has been understood by the appellant, as shown by the argument in his behalf. The prayer, however, puts no hypothesis of facts to exclude the appellant from the full benefit of his defence. It does not conclude that, if the jury should fail to find that the appellee had knowledge of the condition at the time of the endorsement, or that lie after-wards acquired knowledge, and agreed to hold the note subject to such condition, he was therefore entitled to recover. The prayer presents rather an abstract proposition, and appears to have been intended to define and limit the legal effect of the condition upon which the note was said to have been made to the appellant. But this being an action founded upon the appellant’s endorsement of the note, and that endorsement making no manner of reference to the condition upon which the note was made to the endorser, and being in no way restricted or qualified, it is not very apparent how such condition could affect the appellee’s right to recover on the endorsement against the appellant. The latter’s defence, as we understand it, was that the endorsement of the note to the appellee was upon certain terms and conditions, which, having been complied with by the appellant, relieved and exonerated him altogether from any liability by reason of the endorsement: If such be the case, the third prayer’of the appellee gave to the appellant the benefit of a condition upon which his liability did not depend; for the prayer might well be taken as a concession by the appellee that jf the facts therein referred to were found by the jury the verdict should be for the appellant. We think, therefore, there is nothing in this prayer of which the appellant has just cause to complain.

And as to the fourth prayer of the appellee, that would seem to be free from objection. According to the theory and the evidence of the appellant, he could be exonerated from liability by reason of the endorsement of the note only upon his satisfying the jury that he had acted as the agent, of the appellee in making the investment of the money, and in 'taking the note and mortgage as security therefor. If there had not been previous authority delegated, in order to bind the appellee, it was necessary to show that he had subsequently ratified and adopted the acts of the appellant, in making the loan and taking the security. To make such ratification and adoption effectual, as ágainst the appellee, it was essential that he should have had previous knowledge of all the material facts ; Adams’ Express Co. vs. Trego, 35 Md., 69; Bell vs. Cunningham, 3 Pet., 81; Owens vs. Hull, 9 Pet., 607; and if he assented while ignorant of those facts he was at liberty to disaffirm the transaction when informed of them. Copeland vs. Merchant’s Ins. Co., 6 Pick., 198. The value of the property and the extent of the incumbrances thereon were certainly material facts to be known, in making up a judgment as to the sufficiency of the security to be taken for the loan ; and if the security was insufficient, and the appellee was not informed upon the subject, or was deceived in regard thereto, by the appellant, at the time of the supposed ratification, then such ratification, in the absence of all previous authority, would not be effectual as between the appellant and the appellee, except at the option of the latter.

It has been strongly contended in argument, that these prayers, granted on the part of the apjiellee, are susceptible of different interpretations, and that they were, owing to their peculiar structure, well calculated to confuse and mislead the jury, and to deprive the appellant of the benefit of the instructions granted by the Court at his instance. But we have not so construed them. If they had been the only instruction granted in the cause, then there would have been some ground for the criticism of the appellant. But the record contains all the prayers which were granted, as well those on the part of the appellant as those on the part of the appellee; and from an examination of those granted at the instance of the appellant, we find that the jury were fully and explicitly instructed, and that too most favorably to the appellant, in reference to all the facts upon which he relied in defence. Such being the case, we can discover nothing in these prayers of the appellee that would likely mislead or confuse the jury, in considering the case under the instructions given at the instance of the appellant. The party appealing should in all cases be able to show, from the record, that he has sustained real injury by reason of the rulings of the Court below, which form the ground of the appeal; and where this Court can see that the trial below was fairly conducted, and that the law of the case was fully and substantially applied, —the appellant obtaining the benefit of all the law to which he was entitled, or which he sought to obtain, — there can bono good reason for reversing the judgment for matters immaterial, or upon mere refinements as to the terms in which propositions have been submitted to the jury. To justify a reversal there must he substantial error apparent, and that to the prejudice of the appellant. If instructions be ambiguous, or susceptible of different interpretations, the party liable to be affected by them, should avail himself of his right to have th.at which may be doubtful made clear and certain, by more explicit instruction.

(Decided 10th March, 1875.)

As to the fifth prayer of the appellant, which was refused, we think there was no error in such refusal. That the appellant acted in good faith and with reasonable care, in the execution of the authority, or in observing the instructions of his principal, in making the loan and taking the security, were facts which appear to have been assumed throughout as material to the defence, and hence proof was given upon the subject. If the value of the farm was. very much less than the estimate placed thereon by the appellant, that was a fact reflecting on the question of the want of good faith and reasonable care in making the loan and taking the security. The real value of the farm, moreover, was material and proper to be considered by the jury, in reference to the question of ratification, submitted to them by the appellant’s fourth prayer, and also by the fourth prayer of the appellee.

It follows that the judgment must be affirmed.

Judgment affirmed.