Boyd v. McCann

| Md. | Dec 15, 1856

Le Grand, C. J.,

delivered the opinion of this court.

This action was brought by the appellee against the appellant and William Rogers, partners under the name of Rogers & Boyd, to recover the amount of a promissory note for $152.59, dated the 19th day of January 1862, payable four months after the date thereof. The plaintiff proved the signature to be in the hand-writing of Rogers, one of the partners, and that William Rogers and William Boyd were partners, and that the names of both were, at the date of the note, and still are, over the door of the place of business of the late firm, on Baltimore street. He further proved, that the note was sold to the plaintiff by W. H. Ijams, a note broker, and that the note was in blank (as to the payee’s name) at the time of the sale, and that he sold it as the agent of Wylie & Wilson, a house .doing business in the city of Baltimore. It was sold to the appellee on the 11th day of February 1852, for some “seventy odd dollars,” and his name inserted as payee.

The defendant offered to prove, by an advertisement, dated the 1st day of January 1852, but which was not published until the 23rd day of the same month, that the firm had been dissolved upon the first day of it. To this the plaintiff objected, but the court overruled the objection, and in doing so, we think, ácted correctly. Although, as will be seen hereafter, the advertisement, per se, was not sufficient to show either that the dissolution took place on the first day of the month, or that either Wylie & Wilson, or McCann, had knowledge of the fact, yet it was a circumstance tending in that direction, and which, if it had been followed up with other evidence, might have been sufficient to bring notice home to tire plaintiff.

The plaintiff then offered to prove, by Wilson, one of the firm of Wylie & Wilson, that he had received the note sued on from Rogers, of the firm of Rogers & Boyd, upon the day of its date, in renewal of one which was due from Rogers & Boyd, and that he had no knowledge of the dissolution of the1 co-partnership, nor of anything affecting the note, or that it was to be applied to Rogers’ private purposes. The defendant then offered to prove that it was given for the private purposes of Rogers, but without bringing the knowledge home to either the plaintiff or to Wylie Sp Wilson, from whom he obtained it. The plaintiff objected to the. proposed testimony, and the court sustained the objection. The propriety of this ruling will be seen where the law governing case is applied to the respective prayers offered by the plaintiff and defendant.

The plaintiff asked two instructions from the court, the first of which was granted, and the other rejected. The first prayer was defective in form, and, therefore, improperly granted. By assuming their existence, it took away from the jury the finding of the making of the note, and the existence of the partnership. Although the proof was all one way, nevertheless it was for the jury to pass upon it. Iu tlie case of the Charleston Insurance & Trust Co. vs. Corner, 2 Gill, 426, 427, the court say: “Doubtless the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance that it is all on one side, does not authorize the court to direct the jury that it proves the feet. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted light to weigh the credibility of evidence.” On the same point see Brown vs. Ellicott, 2 Md. Rep., 82. Ragan vs. Gaither, 11 Gill & John., 479. Independently of the objection to which we have referred, the prayer stated the law correctly.

If the Messrs. Wylie & Wilson took a good title to the note, then it. was competent to them to dispose of it to one who might be aware of some infirmity in the paper. The right of the party so acquiring it, is the right of those from whom it was obtained. If this were not so, the note would have been valueless in the hands of Wylie & Wilson, bona fide holders without notice. Story, in section 191 of his work on Promissory Notes, thus states the rule: “The partial or total failure of consideration, or even fraud between the antecedent parties, will be no defence or bar to the title of a bona Jide holder of the note, for a valuable consideration, at or before it becomes due, without notice of any infirmity therein. The same rule will apply, although the present holder has such notice, if he yet derives a title to the note from a prior bona fide holder for value. The doctrine, in both its parts, is indispensable to the security and circulation of negotiable instruments; and it is founded on the most comprehensive and liberal principles of public policy. No (bird person could otherwise safely purchase any negotiable instrument, for his title might be completely overturned by some latent defect of this sort, of which he could not have any adequate means of knowledge,” &c., See.

The doctrine was carried much farther, by the late Court of .Appeals, in a case very fully discussed by counsel, and considered by the court, but which has not been reported.

In the case of the Merchants Bank of Baltimore, vs. The President, Directors & Company of the Farmers Bank of Virginia, the facts were as follows: S. drew a check on the bank in Yirginia, which was endorsed “good” by O., the teller of said bank, S. having no funds there to meet it. This was in June; in December following, S. passed it as security to the Merchants Bank for a loan. At this time the Merchants Bank had not any notice of any defect in the check, or its endorsement. In January S. failed; the check endorsed good, which he had deposited with the Merchants Bank, was for a larger sum than that which he had borrowed, but being indebted to Mr. Cochrane, of Washington, and urged by the latter to pay him, he proposed that if Cochrane would settle with the Merchants Bank the amount due to it by S., he would give an order for the check in favor of Cochrane, which was accordingly done. On the 25tb of January, Sherrod, the cashier of the Yirginia Bank, informed Sprigg, the cashier of the Merchants Bank, that Orrick had fraudulently endorsed the check if good,” and that S. had no funds to meet it at the time it was so. endorsed. The arrangement by whioh the debt of S. to the Merchants Bank was settled, was not consummated until the 28th day of January; it, therefore, is apparent that the Merchants Bank had full notice of the fraudulent pharacter of the transaction when it passed the check to Cochrane; the latter, however, had not when he acquired it. The Merchants Bank subsequently obtained possession of the check, and, on the strength of the title of Cochrane, notwithstarrding its own knowledge, was held entitled to recover.

It is shown that Rogers & Boyd had had dealings with the Messrs. Wylie & Wilson prior to the date of the note sued on. There is no evidence they ever had any with McCann. The publication, in the newspapers, of the dissolution of the co-partnership, was not until after the title of Wylie & Wilson was perfected. There was no notice, as shown by the testimony of Wilson, given to his firm of the dissolution, nor is fhere any evidence McCann had any. The latter is sought to be charged with notice because of the publication in the “Baltimore American” newspaper. This cannot be done, it npt haying been shown, except by the certificate of the públisbers of that paper, that the notice of dissolution had appeared in it, nor that McCann took or read the paper. See Byles on Bills, edition of 1856, marginal pages, 35, 36 and, 37, and the authorities there collected.

These views dispose of the prayers offered on the part of the defendant. They show that the title of Wylie & Wilson being good, McCann had the right to repose upon it. The fact that the note was in blank, authorized the plaintiff, at any time, to fill it up with his own name as payee. We think the court properly rejected the plaintiff’s second prayer. It rests on the single fact, that if the jury should find the names of Rogers & Boyd were kept over the door after the dissolution of the co-partnership, then the plaintiff was entitled to recover. This circumstance, apart from all others, manifestly was not sufficient to authorize the recovery of the plaintiff.

Judgment reversed and procedendo awarded.