Gisriel v. Burrows ex rel. Bainbridge

Fowler, J., delivered the opinion of the Court. John Burrows, the plaintiff below, sued the defendant, Jacob Gisriel, upon thirteen promissory notes, but there was a recovery upon only seven of them, namely, on the ³⁷² four notes dated September 6, 1886, and three others dated November 1st of the same year. The declaration was amended by leave of Court during the trial by adding counts upon six other notes, all dated March 7, 1887, but there was no recovery on these last-named notes. When leave was granted to amend the narr. the defendant objected thereto, and his objection being overruled he excepted.

He then pleaded three pleas to the additional counts contained in the amended narr., the first of which was demurred to by the plaintiff, and the demurrer sustained and issue joined on the second and third pleas. Both plaintiff and defendant have appealed. All the notes in the case are of the same form and style, mutatis mutandis, as the following one : §300.00. Baltimore, March 4th, 1887.

On August 1st after date I promise to pay to the order of John Burrows, three hundred dollars, with interest at 6 per cent., value received. 1100 N. Fremont St. Chas. F. Klunk. Due Aug. 1 — 4. Endorsed, Jacob Gisriel, John Burrows.

Among the notes sued on there were six — two of which are dated March 1, and four March 4, 1887, respectively; and during the course of the trial it appeared from the testimony of the plaintiff that the six notes of March 7, 1887, offered in evidence, but not sued on in the original narr., were for the same amounts and the same consideration as the six notes of March the first and fourth. When the notes of March the seventh were offered in evidence the plaintiff disclaimed all right to recover upon them, if he should recover upon those of March the first and fourth, and likewise he disclaimed any ³⁷³ right to recover upon the latter if he should recover upon the former. After the evidence was all in, and argument had upon the prayers, the trial Judge announced that he would grant defendant’s fourth prayer. Now, this prayer asked the Court to instruct the jury that if they should find that the notes of March 7 were given in lieu of those sued on in the original narr., and dated March first and fourth, respectively, and were so accepted by the plaintiff, that then he could not recover under the pleadings and evidence in this case on said notes of March first and fourth.

In order to meet this exigency the plaintiff asked leave to amend Ms narr. by adding counts on the notes of March 7th. There can be no doubt he had a right to amend any time before the jury retired. Art. 75, section 34, of the Code. The first plea to the amended narr. alleges, in substance, that the notes of March 7th were given for the same consideration as the notes of March first and fourth, and that the plaintiff having elected to proceed on said last-named notes, he is precluded by such election from suing on said notes of March 7th.

The Court sustained the demurrer to this plea. We think it is clear the plaintiff had a right to sue on both sets of notes in the one action. He could, of course, recover only on one set of notes, if it should be ascertained by the evidence that both sets were given for the same indebtedness. And the Court so instructed the jury by its fourth instruction, which is not excepted to.

We find no error, therefore, either in the action of the Court in allowing the amendment, nor in its rulings on the demurrer. The defendant, however, was not injured by these rulings of the Court below, for the jury found for him on the additional counts. The defendant’s first bill of exceptions raises the question as to the admissibility in evidence of the printed ³⁷⁴ record in the case of Burrows vs. Klunk, reported in 70 Md., 451 . The ground on which it is claimed that record should be admitted in this case is that it contains evidence on the question of fraud, and to show the relations that existed between Klunk, a witness in both cases, and Burrows, who is plaintiff in both cases.

But,» clearly that record could not have been admitted for any such purpose. That case involved the validity of certain notes entirely separate and distinct from those here in question, and the evidence produced to maintain the issues in that case cannot possibly have any relevancy whatever to the issues in this. But even if the witnesses in Burrows vs. Klunk gave any testimony relevant or material here, they should