Brocato v. Serio

Mitchell, J., delivered the opinion of the Court. The cause of action in this case is a promissory note for $2,000, dated August 12th, 1932, and payable two years after date thereof, to the order of Charles Serio, the appellee, with interest thereon at the rate of six per cent.; the same purporting to be signed by Santa Brocato and Frank Brocato, the appellants. The suit was brought in assumpsit, in the Baltimore City Court; the declaration containing one count, which sets out the note and the default in its payment. To this declaration the defendants filed the general issue pleas of never promised as alleged and never indebted as alleged.

The case was submitted to the court, sitting as a jury, which rendered a verdict in favor of the appellee, plaintiff below, in the sum of $2,500. From the judgment extended on said verdict this appeal is taken. At the conclusion of the testimony of both the plaintiff and the defendants, the defendant Santa Brocato offered four prayers, and the defendant Frank Brocato offered three prayers, all of which were refused by the trial court. The ruling of the court upon the prayers forms the basis of the single exception found in the record; and for the purpose of considering this ruling it becomes necessary to review the evidence.

At the trial the plaintiff produced as a witness Frances Serio, who testified as follows: That she was a sister-in- ³⁷⁷ law of the plaintiff and a cousin of Frank Brocato, and was present at the time the note was executed; that Frank Brocato and Santa Brocato were husband and wife, and that they and their daughter ’and an aunt of the witness were also present, the aunt referred to being the widow of Sam Brocato, hereinafter mentioned; that Santa Brocato executed the note, and handed it to the witness for delivery to the plaintiff at that time; the note was delivered to her for the purpose of renewing a former note, dated February 13th, 1928, in the sum of $2,000, signed “S. Brocato & Son,” which latter note appears to have been a renewal note for an original loan, made approximately fourteen years prior to the date of the trial, to the firm of S. Brocato & Son. The witness then explained that, shortly prior to the time of the original loan, at the request of Frank Brocato, she met Santa and Frank, her uncle Sam, and the latter’s wife, whose Christian name does not appear in the record, all of whom requested her to make them a loan of $2,000; she informed them that she was not in a position to make the loan, because her husband was not on good terms with the applicants; whereupon Santa Brocato asked if she would not endeavor to secure the loan from the plaintiff; that she did interview the plaintiff in behalf of the applicants, who consented to make the same; that she was present when the check representing the loan was delivered to Frank Brocato, who in turn handed it to his wife, who put it in her pocket, and that this transaction took place in the presence of Sam Brocato, who was then in bed; “at that time each one spoke and said, we will never forget Charlie, for this, he surely is good. She said, Charlie, remember we owe you this $2,000; we will pay you just as soon as we can. Santa said that with Frank Brocato.” Continuing, .the witness testified that the firm at that time consisted of the two defendants and Sam Brocato and his wife, and that the original loan was made to that firm.

While the original note does not appear in the record, it does appear from a photostatic copy found in the record that on February 13th, 1928, a note for $2,000, payable ³⁷⁸ to the order of Charles Serio, was signed by “S. Brocato & Son”; and according to the testimony of Mrs. Serio, the witness, as to this latter note, the signature of the firm was placed thereon1 by Santa Brocato, and it was delivered to her, and through some omission, not surrendered at the time of the acceptance of the note forming the basis of this suit. The witness also testified to the execution of ¡at least one other note by way of renewal, by Santa Brocato on behalf of the firm; that it was about six months or a year ¡after the money was actually loaned that the first note was given; that, at the time the original loan was made, it was contemplated that it would be paid off in six months, from the proceeds of the sale of certain property belonging to the borrowers, or at least some of them; that during the last illness' of Sam Brocato, she collected $60 on account of interest from Santa Brocato, who then told her to tell the plaintiff that she would give him another $60 later; this she subsequently paid; that, after the death of Sam Brocato, ¡at. the request of the plaintiff she called on Santa Brocato for a new note; that the latter made out another note, signed “S. Brocato & Son,” which she took back to the plaintiff, who stated that it was not satisfactory, because Sam Brocato was dead; she again saw Santa Brocato, who stated that she did not have a new blank note; a week later she called on Santa Brocato, who then had the note in controversy prepared and in her possession, and that in her presence, and in the presence of Frank Brocato, Santa signed this note. Upon cross-examination, she stated she did not know whether Frank actually signed the note, or whether his name also was affixed in his presence by his wife. The plaintiff, when called, corroborated his sister-in-law as to the manner in which the loan was originally negotiated, stating that he, was not related to the Brocatos; that the death of Sam Brocato occurred prior to August 12, 1932, the date of the cause of action; that he collected interest on the loan for a number of years from Sam Brocato.

He was then asked by the court: “Q. Did you lend it to Mrs. Frank Brocato? A. No, sir, I loaned ³⁷⁹ it to them; I loaned to Brocato & Son, and then the father he died; after the old man died I went and renewed the note, and I said—they wrote Frank Brocato & Son again; I said, No, this wouldn’t be no good any more, you have to put your wife’s name and your name in here, which I got the note from both of them”; that at the time of the original loan, Sam Brocato and his wife, and Santa Brocato and her husband, were engaged in a business in Hollins Market; that the original note was not then given, but was l'ater delivered to him, signed “S. Brocato & Son”; that' the transactions between the parties were usually conducted through his sister-in-law, but that after the death of Sam Brocato he made demand on Frank and Santa Brocato for the repayment of the money; that both of them said they were going to repay the indebtedness, and were going to secure a loan from the government for the purpose; that originally they had promised to pay the money from the sale of “shore” property; that S'am Brocato and his son and son’s wife all actively engaged in the Hollins Market business during the lifetime of the former, and traded as Brocato & Son. In direct conflict with the plaintiff’s side of the controversy, Santa Brocato testified that Sam Brocato, her father-in-law, was in the fruit business and that her husband worked for him on a salary of twenty dollars a week and board; that she had nothing to do with the business; that sometimes Sam Brocato needed her down at the market, and on these occasions he paid her for her work; that she was called on to help out from time to time; that sometimes she attended to the bookkeeping, because the father-in-law could-not read; “he could not see so good and he said to me to write for him something; I did writing for him and signing things, that is all; I remember signing that note ‘Sam Brocato and Son’; my father-in-law told me to write up something for him; I don’t remember whether I was present at the time that .my father-in-law got some money from Serio”; that, after the death of Sam Brocato, Frances Serio presented to her a note, and told her to sign it, because her father-in-law ³⁸⁰ owed the plaintiff the money; that she did not want to sign, and refused to sign on account of the absence of her husband, but that she did sign her own name, and also that of her husband, notwithstanding her disposition to the contrary, for the reason that Mrs. Serio had made her so nervous; that she did not receive the check for the $2,000 original loan, as testified by Mrs. Serio; that she knew nothing of the claim against her until after the death of her father-in-law; she denied that at that time the note was filled in. The witness then added: “Afterward I told him (her husband) that I had signed this.

He did not want me to sign. I said, it is all over, what are you going to do?” There is nothing in the record to show that the husband at that time, either in action or words, answered the latter query. When called in his own behalf, however, he testified that his father, Sam Brocato, was engaged in the fruit business for some yeays at 1122 West Baltimore Street, and that he died on or about December 24th, 1931; that he conducted the business alone, and that he (the witness) worked for him at a weekly salary of twenty dollars and board; that because of the number of persons in that locality bearing the same name as his father, the business was conducted in the name of “Sam Brocato and Son” for the purpose of identification; that the father could not read English, and for that reason Santa Brocato attended to his checks; that she received no compensation; that they all lived together, namely, father and mother, and son and daughter-in-law.; that the mother was still living; that he knew the plaintiff, but did not know that he ever had any dealings with him, and if the plaintiff had any business with his father, he did not know; that he knew nothing of the alleged loan of $2,000 to his father until after the latter’s death, when demand was made upon him by the plaintiff; that he never signed any note; that the father left no estate; that during the course of the conduct of the business, his father carried a bank account; that his wife attended to the business of signing checks and making out bills, and that, at the time they were in ³⁸¹ business in the market, she helped out in the conduct of the business. This witness denies any knowledge of the execution of the note; but admits that his father was an invalid for some years before his death, and that the business was continued and his wages paid out of the profits of the business; and he expresses his lack of knowledge as to whether his father owned any real estate.

His testimony indicates that the title to the property which was used as the home of the Brocato family was in his mother and wife. The record indicates that the A prayer of each of the defendants was not offered until the close of all the testimony, but nevertheless, asked for an instructed verdict based upon the uncontradicted evidence of the plaintiff alone. Such a prayer at this stage of the case was entirely erroneous, for the reason that it would have eliminated from the consideration of the court, sitting as a jury, the evidence which had already been adduced by the defendant, 'and was therefore properly refused. 2 Poe, PI.