Parr v. City Trust, Safe Deposit & Surety Co.

52 A. 512 | Md. | 1902

The appellee sued the appellant in the Baltimore City Court upon several promissory notes. The narr is in the usual form, containing the common counts, and a special count on each note in each of which, in addition to the usual allegations, it is alleged that notice of protest and dishonor was waived by the defendant. The general issue was pleaded and issue joined.

At the trial the plaintiff offered in evidence the notes sued on and the waiver and proved non-payment — the signatures of defendant being admitted. There was some other evidence, but the conclusion we have reached renders it unnecessary to refer to it.

At the conclusion of the plaintiff's case the defendant asked the Court to instruct the jury that under the pleadings and evidence in the case there was no legally sufficient evidence to entitle the plaintiff to recover. This prayer was rejected by the Court below, and the verdict being for the plaintiff the defendant has appealed.

The rejection of this prayer presents the only question we have before us.

It was contended by the plaintiff that the prayer was properly rejected for two reasons, first, because it is too general, and, second, that by the true construction of the waiver of notice of protest it operated as a waiver of protest as well as a waiver of the usual formalities such as presentment and demand, and that therefore there was no failure of proof in these respects because none was required in this case by reason of the waiver.

1. First then as to the form of the prayer. It was said nearly fifty years ago by JUDGE MASON in delivering the opinion of this Court in the case of Hatton v. McClish, 6 Md. 417. "There have been a great many decisions by the Court of Appeals upon this particular subject, and it would be a far more difficult than profitable task, to attempt to reconcile them." In the nearly half century which has passed since these words were written the task of reconciling the decisions of this Court upon this question has certainly not become less difficult, nor do we think such an attempt would be any more profitable now than it was then. It is sufficient to say, however, that prayers like the one here objected to, going to the legal sufficiency of theevidence have been uniformly approved by this Court during the past twenty years. It is true that in some of the quite recent cases, as for instance in Bullock v. Hunter, 44 Md. 428;Gill McMahon v. Weller, 52 Md. 15, the first decided in 1875 and the latter in 1879, this rule was apparently departed from. But in very many of the cases relied on by the appellee to show that a prayer going to the legalsufficiency of the evidence is bad, the decisions do not support his contention. Thus in Tyson v. Shueey, 5 Md. 540, the prayer held bad was "that from the pleadings and evidence in this case the plaintiff is not entitled to recover;" in Hatton v.McClish, 6 Md. 407, the Court was asked to instruct the jury that there was no evidence on which under the pleading in the case they could find for the plaintiff and again in Warner v.Hardy, 6 Md. 525, the prayer was "that upon the whole evidence it is incompetent for the jury to find for the defendant." InDorsey Exc'rs v. Harris, 22 Md. 88, the same general prayer was offered — that upon the pleadings and evidence the plaintiff was not entitled to recover — and this Court said that as the prayer failed to point out any particular error or omissions in the proof, or to raise any definite question as to its sufficiency it was bad. It is true that in some of the cases above referred to the general prayer was considered as going to the legal insufficiency of the evidence, and was held bad as inDorsey Excrs. v. Harris and Hatton v. McClish, supra, because it did not point out any definite question as to its sufficiency. But, as we have said the practice in this State has become so well-settled now that it is too late to question the form of the prayer granted in this case, namely, "that under the pleadings and evidence in the case there was no legally sufficient evidence to entitle the plaintiff to recover." Thus inWest. Md. R.R. Co. v. Carter, 59 Md. 311, it was said that a prayer instructing the jury that the plaintiff is not entitled to recover upon the pleadings and all the evidence is entirely too general. "It is quite different," said JUDGE ALVEY, "from theordinary prayer or instruction that there is no evidencelegally sufficient upon which the plaintiff can recover, or that there is no legally sufficient evidence of a particular fact. By such instruction the point decided is simply the legalinsufficiency of the evidence to be considered by the jury." It is apparent from the language used in the case just cited that the form of prayer here objected to was the usual and ordinary prayer then and theretofore used to question the legal sufficiency of the plaintiff's case. And so inCo. Commrs. v. Wise, 75 Md. 43, the present Chief Judge said of such a prayer, it "was a demurrer to the evidence and raised the question of the right of the plaintiff to recover, assuming all the evidence offered by her to be true." The same prayer is approved in State, use of James v. Kent Co., 83 Md. 383. InHobbs v. Batory, 86 Md. 68, in commenting upon and disapproving of "a prayer asking the Court to rule that as a matter of law the defendant is not liable in the action" it was said, PAGE, J., delivering the opinion of the Court, that such a prayer "is a general denial of the plaintiff's right to recover * * * but it submits no proposition of law, and therein differs from the prayer that there is no legally sufficient evidence for the plaintiff to recover." And so also in Grand Fountain Order v. Murray, 88 Md. 425 (McSHERRY, C.J.,) the same view is expressed, and to the same effect is Mallette v. British Ass.Co. (PEARCE, J.) 91 Md. 481; 2 Poe Pl. Prac., sec. 297. It is apparent, therefore, that whatever may have been the view announced in some of the older decisions of this Court, it is now conclusively established that a prayer like the one in this case is not too general, that the precise and definite question sucha prayer presents is the legal sufficiency of the evidence toentitle the plaintiff to recover.

2. It remains to discuss the second point involved — namely, the contention of the defendant that the agreement of waiver ofnotice of protest is not equivalent in this case to a waiver of protest which latter it is admitted would dispense with all the formal acts, such as demand and presentment, necessary to charge an endorser.

Inasmuch as the decision of this case turns upon the legal effect and the proper construction of the waiver we will transcribe it in full. It is as follows:

"Baltimore, June 14th, 1897.

For and in consideration of the sum of one dollar to each of us in hand paid and for other valuable considerations, we, the undersigned hereby waive notice of protest upon the following notes of the Columbian Iron Works and Dry Dock Company of Baltimore, at present held by the City Trust, Safe Deposit and Surety Company of Philadelphia, all dated April 30th, 1895:

  At 24 months .................................... $5600
   " 28   "    ....................................  5700
   " 32   "    ....................................  5800
   " 36   "    ....................................  5900
   " 40   "    ....................................  6000
   " 44   "    ....................................  6100
   " 48   "    ....................................  6200
   " 52   "    ....................................  6300
   " 56   "    ....................................  6400
   " 60   "    ....................................  6500
   " 64   "    ....................................  6600

WM. T. MALSTER (Seal.) CHRISTIAN DEVRIES (Seal.) Witness: JAMES LYND. HENRY A. PARR (Seal.)

The exact question presented by this branch of the case then is whether the above agreement amounts to a waiver of protest and therefore a waiver of demand and presentment. For if it does not the plaintiff must fail, for it is conceded no evidence of protest was offered by it. But, if on the contrary it can be ascertained from the agreement that it was the intention of the endorsers to dispense with demand and presentment and protest, then the prayer asking the Court to take the case from the jury was properly rejected — for as we understood the argument of appellant's counsel at bar his contention rested solely upon the absence of proof of protest.

How then does the case stand? It will be observed that the agreement is dated June 14th, 1897, and that the first note mentioned therein was payable twenty-four months after date, that is to say twenty-four months after the 30th of April, 1895. The note, therefore, matured and was due and payable on the 30th April, 1897, or forty-five days before the agreement to waivenotice of protest was executed. It appearing, therefore, that when the agreement was entered into the first of the series of notes mentioned therein was overdue and unpaid, it follows that it was impossible then to have it legally protested or then to have made a demand or presentment which would have charged the endorsers. This being so it is not reasonable to construe the waiver so as to impute to the endorsers an intention to waive only notice of protest and require the plaintiff to go through the meaningless and foolish form of protesting an overdue note. We think, therefore, that as to the overdue note there was no intention on the part of the endorsers to insist upon an actual protest, and that as to it, there can be no doubt that their waiver of notice of protest is equivalent to waiver of the performance of the acts the law requires to be performed by the holder of negotiable paper in order to fix liability upon endorsers. If we are correct in the construction we have given the waiver in regard to the overdue note we can see no reason why it should not have the same construction as to all the notes in question. For the words "waiver of notice of protest" are used as to all the notes sued on, and it cannot be said that so far as they refer to the overdue note they are equivalent to "waiver of protest," but as to the remaining notes they have another and very different meaning.

Basing our conclusion, as we do, upon the facts of this particular case, and especially upon the fact that the first note of the series mentioned in the agreement of waiver was long overdue when the agreement was executed, it is unnecessary to consider the general question which was so ably and elaborately argued at bar, whether as a general proposition an agreement towaive notice of protest is equivalent to waiver of protest.

Judgment affirmed.

(Decided June 17th, 1902.)