Edelen v. First National Bank

Urner, J., delivered the opinion of the Court. The decision just rendered in the case of Edelen v. The First National Bank of Hagerstown, ante, p. 413, disposes of ⁴²³ some of the questions raised on this appeal. The opinion in that case refers to the promissory note here sued on and states the circumstances of its origin and of its acquisition by the bank. It is one of the notes for which those involved in the other case were -designed to- be- substituted.

Tbe retention and disposition of all of tbe notes by the person to whom they were originally delivered is a, part of the fraud in their inception which the former opinion describes. A separate suit has been brought on tbe note now before us because it is signed by only one of the two persons who made and indorsed the notes on which the other action was instituted. The same question as to the legal sufficiency of the evidence- to show that the bank was not a bolder in due course was raised in both cases, and there is no material difference in tbe testimony presented by tbe two records on tbat subject. The instruction which we approved in the case first decided was likewise granted in this instance, and we concur in that ruling for the reasons stated in the prior opinion.

This record also contains three exceptions to rulings on the admissibility of evidence, which present questions identical with some of those decided on tbe other appeal and which, therefore, need not be discussed. An exception was taken to tbe refusal of the- court to permit tbe president of tbe plaintiff bank to be asked, on cross-examination, what is tbe purpose of making a note payable to “myself,” tbe note- in suit being in tbat form. Tbe expression of an opinion by tbe witness upon tbat question would have been wholly immaterial. Tbe negotiability of a note so drawn is recognized by tbe Regotiable Instruments Act (Code, art. 13, sec. 83), and the adoption of that form or note by tbe defendant, as tbe maker and indorser, did not tend to suggest any fraud in its origin.

Tbe most important exception in the record sought unsuccessfully to deprive the plaintiff of the position of a holder in due course on the theory that the- note was not negotiable, and hence was subjecst to the: original equities, because it ⁴²⁴ contained the following provision: “Claim to exemption waived,.and it is hereby further agreed that at any time judgment confessed shall be entered in a proper court against the maker or makers, and endorser or endorsers thereof, if any, for such sum as may.be due thereon, and costs, and ten per cent, additional to said sum as a fee” to designated attorneys for obtaining the judgment. The Negotiable Instruments Act provides that “the negotiable character of an instrument otherwise negotiable is not affected by a provision which * *' * authorizes a confession of judgment if the instrument be not paid at maturity.” {Code, art. 13, sec. 24.) It is contended that the clause we have quoted from the note authorizes a judgment to be confessed on it before maturity and that its negotiability is thereby destroyed. If the provision was simply that the judgment might be obtained “■at any time/’ the contention would