72 Md. 325 | Md. | 1890
delivered the opinion of the Court.
This was an action brought by the appellee on a single bill or bill obligatory against John H. Moats, who died soon thereafter, and the appellant, becoming administrator with the will annexed, was made party defendant.
The note or single bill bears date the 24th of February, 1885, and is for $950, payable one day after date. The case was tried upon issues joined upon pleas of non est factum, and that the note was procured by the fraud of the plaintiff.
At the conclusion of the evidence the Court, at the request of the plaintiff, instructed the jury as follows:
1. “That the possession of the single bill in suit by the plaintiff is prima facie evidence of the sealing and delivery of the same by the deceased to the plaintiff,
, 2. “That if the jury should find the execution and delivery of the single bill in suit by the defendant’s testator, then the plaintiff is entitled to recover, notwithstanding the evidence offered by the defendant, tending to show that the deceased was not, in need of money at the time the note was given, and the plaintiff had not the money to lend.
3. “ That it is not competent to the defendant to impeach or question the consideration of the note sued on, and the'only matter for the jury to consider under the pleadings is whether the deceased executed and delivered the note as claimed by the plaintiff; and if the jury find such execution and delivery, the plaintiff is entitled to recover, unless the jury further find that the note sued on was procured by the fraud o.f the plaintiff; aud the jury is further instructed that there is no legally sufficient evidence for the jury in this case from which they may find that the said single bill was procured by the fraud of the plaintiff. ’ ’
It was to the giving of these instructions hy the Court that the defendant excepted; and the question is whether, under the pleadings and evidence, the jury were properly instructed, in accordance with the Avell settled principles of law applicable to such cases.
The general issue plea of non est factum, denying as it does the allegation in the declaration that the single bill sued on was the deed of the defendant’s testator, threw the whole burden of proof upon the plaintiff, of the execution of the single bill, including the delivery thereof hy the obligor. Union Bank of Maryland vs. Ridgely, 1 H. & G., 416. The execution of the deed, to make it effective, consists of the signing and sealing thereof, followed by the act or ceremony of delivery.
The first instruction given was erroneous and calculated to mislead the jury, because, by it, the jury were told that the mere possession of the alleged single bill by the plaintiff was prima facie evidence, not only of the delivery, hut also of the sealing of the note, if they believed the signature thereto was in the hand-writing of the defendant's testator. The existence of the seal of the party to be charged, the thing that makes the instrument a deed as distinguished from a promissory note,
This first instruction would seem to have been copied from the fifth prayer of the plaintiff in Edelin vs. Sanders, Exec’r, and which the Court of Appeals said ought to have been granted. But the terms of the prayer do not appear to have been critically examined either by Court or counsel ; and if construed literally it could hardly be made consistent with the principle expressly enunciated by the Court in that case, and which is clearly stated in the head-note of the case thus: “ The general plea of non est factum imposes on the plaintiff the onus of proving both the execution and delivery of the bond; and proof of execution and possession is prima facie evidence of delivery, and in the absence of all proof on the other side will entitle the obligee to a verdibt. ”
The second and third instructions are also erroneous, because they excluded from the consideration of the jury all the circumstances given in evidence to reflect upon the question of fraud raised by the pleadings. .Whether the facts given in evidence on the part of the defendent were sufficiently-strong to outweigh all the evidence for
Judgment reversed, and new trial awarded.