Dunham v. Clogg

Stewart, J., delivered the opinion of the Court. There could have been no valid objection to the instruction given to the jury by the Court if the facts in the case justified it, but so far as we can discover by the proofs furnished in the bill of exceptions, they did not warrant the instruction. There was no evidence that the note in question was given for goods sold by Stetson 'Vaughn, as agent of C. L. Dunham, to the appellee, and that as such agent he endorsed it to Dun-ham, and that it was paid to Vaughn as such agent; but so far as the facts are disclosed by the proof, Dunham and Vaughn were strangers to the transaction between the appellee and G. D. Vaughn. If the appellee had made it appear that G. D. Vaughn was the agent of C. L. Dunham in the transaction of the sale of the shoes to the appellee, or that Stetson Vaughn, as agent of said Dunham, was authorized to employ G. D. Vaughn as a sub-agent, or that Dunham ratified or accepted the acts of G. D. Vaughn, or Stetson Vaughn, in reference thereto, and that the note sued on was given for the shoes, Dunham would have been bound by the acts of G. D. Vaughn in relation thereto.

In such case Dunham or his endorsee, the appellant, after the dishonor of the note, would hold it subject to any equities the appellee, as the maker of the note, might have affecting its validity or recovery from him. The appellant was warned by the protest and took the dishonored note, subject to such equitable defence as the appellee might be entitled to under such circumstances. ²⁹² Whilst it is true that the note, although overdue, might be endorsed, yet when it was transferred by endorsement, or delivery after protest, the holder took it cum onere. Anan vs. Houck, 4 Gill, 325 . In such case it must be left to the jury, upon the slightest circumstance, to presume that the endorsee had notice of any equity affecting its validity.

Story on Prom. Notes, see. 178; Chitty on Bills, 216, 217. The error of the Court is not relieved by the provisions of the Act of 1862, ch. 154. That Act prevents us from reversing a judgment by reason of the assumption of a fact, on the part of the Court, unless the objection is made at the trial below.

The error is not in the assumption of a fact, but predicating the instruction upon a hypothesis of facts, of which there was no sufficient testimony. 25 Md., 30, 34 . There was no point made below in reference to the state of the pleadings, and we are restricted in our review to the consideration of the evidence and the instruction of the Court thereon. If •there were any mala jides in regard to the transaction of the note, affecting its validity, it