Cecil Bank v. Heald

Goldsboeough, J., delivered the opinion of this Court— Babtol and Cochean, J., dissenting; The appellant instituted suit in the Superior Court of Baltimore city, to recover from the appellees the sum of $3,438.-85 alleged to be the proceeds of certain promissory notes sent to Josiah Lee & Co., specially endorsed “for collection.’ These notes were payable in Jersey city, New Jersey, and were transmitted by Lee & Co., to J. S. Fox, - Cashier, and endorsed “for collection.” They were collected by Fox, as Cashier of the Mechanics and Traders Bank of J ersey city, who, after deducting from the amount collected a balance due by Lee & Co. to said Bank, remitted the residue by check on the Continental Bank of New York. This residue is the amount claimed by the appellant. This check was remitted to Josiah Lee & Co., made payable to their order, dated the 29th of October, 1860, and received on the 31st of the same month. Lee & Co. endorsed it in blank and sent it, on the last named day, to the appellees, who applied it in part payment of a debt due by Lee & Co, to the appellees. ⁵⁷² Lee & Co. failed on the 30th of October, the day before •they sent the check to the appellees, and on an investigation of their affairs they were found to be utterly insolvent.

At the trial, the plaintiff proved that the defendants, as bankers, were partners under articles of co-partnership by which they were associated for the purpose of conducting “a 'banking, bank note, .exchange, bill broking and stock business.” It also appeared that William Heald, one of the alleged partners, had contributed $80,000 as special partner., .and that he had stated his intention not to draw his share of profits, but to suffer them to accumulate for the benefit of Spurrier, one of the defendants, his son-in-law, and Spurrier’s children, who were his, He.ald’s, grandchildren. In the progress of the trial, three exceptions were taken by the appellant to the ruling of the Court. The first relates to the .objection to evidence .offered by the appellees that Lee Co. had notice of the terms of agreement for special partnership between the appellees, the appellant insisting that such proof would not affect it; the Court overruled the objection and admitted the evidence. The second exception was taken by the appellant to the ruling of the Court rejecting its prayer .and granting the two prayers of the appellees.

The third exception was taken because the Court declared the evidence of Gerard Go ver, offered by the appellant, inadmissible, and that it was to be treated as out of the case. The .circumstances attending this exception will be noticed in treating of it. In disposing of the questions presented by these exceptions we shall reverse the order of them, and first consider the third exception. This exception was not, in fact, taken until the prayers of the respective parties had been submitted.

No exception was taken to the opinion of the Court when first announced; the appellant, therefore, must be presumed to have waived its objection. The ruling of the Court was fully ⁵⁷³ justified under such circumstances. See Davis vs. Patton, 19 Md. Rep. 120 , and the eases there cited. The second exception involves the ruling of the Court in granting the appellees’ second prayer.

It is important, in this connection, to recur to the appellant’s cause of action. The suit was brought to recover from the appellees the amount received by them on a check of the Mechanics and Traders Bank of New Jersey, on the Continental Bank of New York, payable to the order of Josiah Lee & Co., by them