Citizens Bank v. John A. Howell & Bros.

Eccleston, J., delivered the opinion of this court. The counsel for the appellant insist, that the record presents for our consideration, not only the inquiry whether the court was right in the instructions given to the jury, but also, whether there was not error in refusing to grant the prayers of the appellant; whilst the appellees contend that no exception was taken to the rejection of the prayers but only to the instructions by the court. We are inclined to think the latter is the correct view, but the point need not be decided, because, confining ourselves to the instructions, we find such error in them as to require a reversal of the judgment. The following is the language of the court: “If the jury believe from the evidence in the cause, that the note offered in evidence was drawn by Wesley F. Walter and indorsed by Edmond T. H. Walter, and that the said indorser and drawer both resided in the city of Baltimore at the time of maturity, and that the note was held by the bank at said time, in said city, for collection on account of the plaintiffs, and shall believe they were then and still are the owners of the same; and if they shall further believe that the said note was not paid at maturity, and that said indorser had no notice of the non-payment thereof, on the day of its maturity or the next day thereafter, and that no notice thereof was left by the plaintiffs or their agent at the residence or place of business of said indorser, then the indorser is not responsible for the payment of said note by reason of bis indorsement, although they should believe that the plaintiffs, or their agent duly authorized thereto, as well as other persons in the city of Baltimore, misdirected the notary as to the actual residence of the said indorser, unless they should believe, fhat upon proper and reasonable diligence it was not. in the power of the notary to have pro ⁵⁴⁶ cured better and correct information as to the residence or place of business of the said indorser. “ If the jury believe the facts stated above as to said note, that the contract and undertaking of the bank with the plaintiffs is to be found by the jury from all the evidence in the cause; and if they shall find from such evidence that the bank undertook, on receiving this note for collection, only to employ a competent and proper person to demand payment of said note at maturity, and give the proper notices of its nonpayment, and that they did employ such competent and proper person, and placed the note in his hands in time to have said demand made on the day of the maturity of the note, and such notices given, then the bank is not responsible, although they should believe, that by the negligence or other fault of such person so employed, the note has become lost to the said plaintiffs.

But if the jury should believe from the evidence in the cause,, that the undertaking of the bank in their receiving said note for collection was, that they would do all that was proper and necessary to be done by the plaintiffs themselves, in order to the security of the interests of the plaintiffs, so far forth as the responsibility of the drawer and indorser was concerned, then the defendant is answerable to the plaintiffs for whatever loss they may find the plaintiffs to have in-curred by reason of such