Clarke v. Dederick

Miller, J., delivered the opinion of the Court. This action was brought by the appellee, as endorsee and holder, against the appellant, as maker of two promissory notes, for $2,500 each, one dated 1st of September, 1865, at twelve months, and the other March 4th, 1866, at six months, both payable to the order of L. & P. K. Dederick, and by them endorsed. The plaintiff rested his case upon the production of the notes, and the admission of the signatures of the maker, and of the payees and endorsers. The defence set up was failure of consideration, and that the plaintiff' was not a bond fide holder for value and without notice.

After the testimony was closed, the Court rejected a prayer offered by the defendant, and instructed the jury, at the instance of the plaintiff, “ that there is no evidence in the case that the plaintiff, at the time he acquired title to the promissory notes in controversy, was aware of any defect or infirmity in the title of L. & P. K. Dederick thereto, and that their verdict must be for the plaintiff.” An instruction like this is in effect a demurrer to the evidence, and though Courts should be cautious in the ex ¹⁵⁰ ercise of their power to grant it, yet when a proper case for its application arises, there is no power which Courts of justice possess more salutary and conservative in its operation and effect. It is true, as has been often said, that where testimony is derived from a legal source and is' pertinent to the issue, or, in legal language, tends to prove the issue, it must be submitted to the jury, though weak and inconclusive in itself, its sufficiency in fact being a question for their exclusive cognizance. But the legal sufficiency of the evidence adduced to sustain the issue or to establish any particular fact material to its determination, is a question of law and not of fact; and wherever it is so light and inconclusive that no rational, well-constructed mind can infer from it the fact which it is offered to establish, it is the duty of the Court, when applied to for the purpose, to instruct the jury that there is no evidence before them to warrant their finding the fact thus attempted tp be proved. Such has been the uniform language of this Court, and such has been the practice prevailing from time immemorial in the Courts of this State, and of England, where the same principles of the common law prevail.

The application presupposes there has been some testimony offered “ tending,” in the literal and common acceptation of the term, that is contributing to prove the issue, and the instruction asserts that it is of so slight and inconclusive a nature as to be wholly insufficient to be made the basis of a verdict. In such case the Court judges of the measure and quantity of proof, and instructs the jury upon its sufficiency in law to prove the issue before them. The exercise of this power by the Courts, as was said by Judge Dorsey in Cole vs. Hebb, 7 G. & J., 41 , “is no infringement of the sage axiom of the common la w ad questiones juris respondent judices, ad questiones facti respondent juratores f it is coeval with the institution of the trial by jury; is the balance-wheel of the machine by which their powers are exerted — a check, ¹⁵¹ a safeguard placed around them to prevent tbe abuse not the use of their authority. It is in fact, both in practice and theory, the great conservative principle of our jurisprudence as respects the trial by jury.” We have deemed it proper to say this much in view of efforts recently made in this and other cases, to open up again the controversy and discussion which were settled by the elaborate and masterly opinion of Judge Dorsey, in Cole vs. Hebb.

The instruction, however, in the present case, is erroneous, not for any want of power in the Court to grant it, but for other reasons, which we shall proceed to show. It refers to both 'the notes sued on, and instructs the jury that their verdict must be for the plaintiff, and it was accordingly so rendered for the amount of both notes. In reference to the note dated the 4th of March, 1866, and payable at six months, it is very clear from the evidence the plaintiff did not occupy a position which would prevent inquiry into its consideration, or preclude the maker from relying upon any defect or infirmity in the title of the payees. The history of the transaction so far as necessary to be stated for the purpose of an opinion on this point, is briefly this: The defendant originally passed two notes to the Dedericks for $2,500 each, in part payment for the interest in the patent-right which he had purchased from them.

Both notes were dated the 1st of September, 1865, and payable at six and twelve months respectively. When the six months note, which matured March 4th, 1866, was about to fall due, a proposition was made by the defendant to renew it, which the Dedericks declined, because, as appears from their letters, they had passed it away to a broker, and had used the proceeds, and the necessities of their business were such they had not then the funds to take it up or “redeem it” as expressed in the letters. The -note was then protested, and the plaintiff subsequently took it up, or redeemed it for the ¹⁵² payees. Erom this it is quite clear the plaintiff became the holder of this original note after its maturity