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 ³⁸ 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 ³⁹ 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. ⁴⁰ 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. ⁴¹ 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