Brady v. Brady

Thomas, J., delivered the opinion of the Court. On the 22nd of December, 1893, the appellee and the late Judge James Revell executed and delivered to the Farmers’ Rational Bank, of Annapolis, the following promissory note: ($500). Annapolis, Md., Dec. 22, 1893. On. demand, we jointly and severally promise to pay to the Farmers’ Rational Bank, or order, Five Hundred Dollars, value received.

J. Roland Brady, Jas. Revell. Judge Revell died in March, 1908, and after his death this note was found among his private papers, in his safe deposit box in said bank, endorsed as follows: In red ink at the top of the note. J. R. Brady Demand Dec. 22, 1893. ⁶⁵⁸ In black ink.

Eote..............................'...............$500.00 Interest, Nor. 6, ’96............................... 86.25 $586.25 Paid Eov. 6, ’96, by J. E........................... 100.00 $186.25 Interest to Mch. 10, ’97,........................... 10.01 $196.29 Paid Mch. 10, ’97, by J. E......................... 60.51 $135.78 28th Sept., ’98, Int. pd. to Sept. 10, ’98....,.. .$39.21 18th Mch., ’99, Int. pd. to Mch. 10, ’99......., 13.08 5th Apr., 1900, Int. pd. to Mch. 10, 1900...... 26.16 •Sept. 27, 1900, Int. pd. to Sept. 10, 1900...... 13.08 Mch. 27, 1901, Int. pd. to Mch. 10, 1901...... 13.08 Peby. 28, 1902, Int. pd. to Mch. 10, 1902...... 26.16 Sept. 28, 1903, Int. pd. to Sept. 10, 1903....... 39.22 Mch. 29, 1901, Int. pd. to Mch. 10, 1901...... 13.07 Sept. 26, 1901, Int. pd. to Sept. 10, 1901....... 13.07 Int. to Í5th May, 1905............................. 17.65 $153.13 Int. to Mch. 10, 1901..'............................ 13.07 Int. to Sept. 10, 1903.............................. 39.22 On the face of the note was written: “Partners’ Eat. Bank. Paid May 15, 1905, Annapolis, Md. Paid in full by Jas. Eevell, 15 May, 1905.

L. D. Gassaway, Teller.” On the 2nd day of May, 1908, the administrators of Judge Eevell brought suit to recover from the appellee, J. Eoland Brady, the amounts paid by their intestate on account of ⁶⁵⁹ said note, claiming that he signed the note as surety for the appellee. The narr. contains the common counts in assumpsit, and a special count, charging the payment of the note and interest by Judge Eevell, on the 15th day of May, 1905, as surety. The case was tried on issues joined on the pleas of never indebted as alleged and never promised as alleged, and on the replication to the plea of limitations, and during the trial three exceptions were reserved, the first and second to rulings ■of the Court on the evidence, and the third to the granting, at the conclusion of plaintiffs’ testimony, of the defendant’s prayer taking the case from the jury. As the prayer does not refer to the pleadings, in passing on that exception we have only the evidence to consider, and it is not necessary to determine whether under the ■ pleadings in the case the evidence was legally sufficient to entitle the plaintiffs to recover.

The only witness in the case was Mr. Gfassaway, cashier of the bank, who testified that he had been cashier of the bank for six years, and had been connected with the bank for twenty or twenty-five years; that Judge Eevell was at the time of his death a director of the bank; that the signatures to the note were the signatures of the appellee and Judge Eevell; that the note was in the handwriting of Judge Eevell, and that “the memoranda and the receipts on the back of the note” were in the handwriting of former employees of the bank, made in the course of their official duties; that the last two receipts wer'e in his handwriting; that the initials “J. E.” after the word paid, on the back of the note, “stood for, he supposed, James Eevell,” and that the last payment on the note was made to him by Judge Eevell on the 15th of May, 1905; that he was one of the appraisers of Judge Eevell’s estate, and found the note among his private papers, in his safe deposit box in the bank. The note and endorsements thereon were then offered in evidence, and the witness, when asked “to whom the money was paid when the said note was discounted,” replied: “From the usual course ⁶⁶⁰ of business, I would say it was paid to J. Eoland Brady,” and in reply to tbe question, “Wby do -you say it was paid to tbe defendant, J. Eoland Br'ady?” said: “Because it is and bas always been tbe custom of tbe bank since I bave' been connected with it to pay tbe money to tbe person whose name appears first on tbe note, and I find J. Eoland Brady, tbe defendant’s name, is signed first on tbe note which I bold in my band.” He further testified that tbe note did not show, and that be did not have any knowledge of any payment by tbe defendant on account of tbe note or interest, and that the' account of tbe defendant in tbe bank’s ledgers shows that tbe following deposits were made between Dec. 21 j 1893, and February 4, 1894: 1893 - Dec. 23 C $35.98 Dee. 26 0 5.00 1894 - Jan. 8 0 12.00 Jan. 9 C 16.00 Jan. 23 C 30.00 Jan. 26 C 5.00 Feb. 6 O' 3.50 And also “showed tbe following withdrawals:” 1893- Dec. 23 $ 5.00 Dec. 26 22'.98 1894- Jan. 2.50 Jan. 1.50 Jan. 9 1.00 Jan. 10 2.50 Jan. 10 10.00 Feb. 3 1.96 • On cross-examination tbe witness testified as follows: Q. “In your examination in chief you said 'according to tbe custom of tbe bank, tbe money was paid to J. Eoland ⁶⁶¹ Brady. ’ ” A. “Yes.” Q. “But as a matter of fact you do sometimes pay the money to persons other than first signers ?” A. “Yes, sometimes; hut it is not usual, as.I said it is not the custom of the bank to do so.” Q. “Did you not sometimes pay to Judge Eevell the money although his name appeared second on the note ? ” A. “We may have done so.” Q. “Then you cannot say from your own knowledge that the defendant received the money from the bank?” A. “No, not from my own knowledge, but from the usual course of business, I would say that he did.” The rule as stated in 2 Ency. of Evidence, 462, is that: “Two or more persons signing their names to a note as makers, are presumed to be equally bound as such, and the debt evidenced thereby is presumed to have been created for the equal benefit of the joint makers, in the absence of a contrary showing.” See also 7 Gyc., 653, and 10 Ency. of Evidence, 51. On the face of the note in this case the appellee and Judge Eevell are joint makers, and the burden was on the plaintiffs to show that the deceased signed the note as surety for the defendant. 2 Ency. of Evidence, 462 and note 46; Keyset v. Warfield, 100 Md. 72 ; Keyset v. Warfield, 103 Md. 161 . “The order in which makers sign a note does not, of itself, raise a presumption of suretyship,” (2 Ency. of Evidence, 462; 27 Am. & Eng, Ency. of Law, 438), and if it was the custom of the bank to pay the amount loaned on a note to the first signer on the note, without any regard to the relations of the makers, then the fact that the money was paid to J. Boland Brady would not tend to show that he received it as principal. We do not find in the Beeord evidence legally sufficient to overcome the presumption that the signers of the note were joint makers, and as the case was tried on the theory that the deceased signed the note as surety, it was, no doubt, on that ground that the Court below granted the defendant’s prayer. ⁶⁶² ' But it does not follow because of the failure of the plaintiffs to show that the relation of the parties was that of principal and surety, that they were not entitled to recover on the evidence in the case, and that the case should have been withdrawn from the jury.

When one joint maker of a note is required to pay the whole amount due on the note he is entitled to recover contribution from his co-maker on the count for money paid, etc. 1 Poe's P. & P., sec. 113. As we have said, on the face of the note the deceased and the appellee were joint makers. It was found after Judge Eeveli/s death among his private papers, and from the note and the receipts thereon and the testimony of Mr. Gassaway it appears that Judge Eevelt, paid the balance due on the note May 15th, 1905. Ordinarily if a note is found among the maker’s papers after his death it will be presumed to have been paid. 8 Cyc., 247.

In the ease of Heald v. Davis, 11 Gush. 318, where the only evidence offered in support of the plea of set-off was the production by the defendant of the note, the execution of which was admitted, the Court said: “We do not question the correctness of the rule as stated in the cases of McGee v. Prouty, 9 Met. 547 , and Baring v. Clark, 19 Pick. 220