Boyd v. McCann

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 ¹²² 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, neverthe ¹²³ less 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