14 Utah 420 | Utah | 1897
This action was instituted on a promissory note bearing date May 4, 1893, given by the defendant the Burton-Gardner Company to the plaintiff for the payment of $12,000, 90 days after its date. There was a written guar
This case was submitted to the jury, and they must have found upon the issue of conditional delivery against the defendants. We are not prepared- to say that their finding was clearly against the weight of evidence before them.
Numerous errors are assigned upon the ruling of the court sustaining objection's to questions propounded to witnesses by defendants’ counsel. In their original answer the defendants denied the execution and delivery of the note sued on, but did not allege an agreement that the other directors of the defendant company were to execute the guaranty, and that those directors signing were not to be bound unless the others did sign. Under that answer the court ruled out defendants’ cross-examination •of witnesses tending to prove such agreement. That ruling was excepted to and assigned as error. But the court
The charge of the court contains the following language, which the defendants excepted to, and assign as error: “In this connection, you are further instructed that no agreement between the directors themselves with respect to the contract of guaranty and indorsement, of which plaintiff was not clearly notified, can in any way bind the plaintiff.” The objection is to the word “clearly.” It is urged that the use of the term “notified,” without the additional force which the term “clearly” gave to it, was sufficient; that notice with less certainty or clearness than the above indicated would have been sufficient. It is urged that the portion of the charge quoted with the word “clearly” required more proof that the plaintiff assented to the alleged agreement than the law required. The note being in the possession of the plaintiff with the guaranty on it, the presumption was that the delivery was absolute; that it was not conditional. Proof of the agreement, and that plaintiff was a party to it, was required to be shown by evidence sufficient to lead the jury to believe, as reasonable men, that
The defendants also excepted to the following portion of the charge, and assign the giving of it as error: “The court instructs you, first, it is admitted by the evidence that the note sued on was signed by the president and secretary of the defendant the Burton-Gardner Company, duly authorized, and that it was signed by the other defendants, as shown by the note itself, and was turned over to the bank. Under this state of facts the law presumes the note was executed and delivered.” This portion of the charge, considered without taking into consideration other parts that explained it, would have been erroneous. But the entire charge must be considered together. The charge also contained the following: “You are further instructed that the plaintiff had the right to waive the condition as to the guaranty of any directors who did not, for any reason, sign the contract and indorse the note; and by accepting the note without the indorsement of certain directors the bank did not thereby release those who did indorse the note and sign the con-, tract of guaranty, unless you find that the plaintiff had actual notice that the defendants who signed the guaranty signed it with the condition precedent to their liability thereon that all the directors should indorse the note and sign the contract of guaranty; and also, in the event of any director not signing, that none of those who signed should be liable.” Considering these two paragraphs together, it is not probable that any juror would understand the court intended that it was admitted the note with the guaranty on it was signed and delivered unconditionally. He would understand that it was for the jury to find from the evidence whether the persons who