Hager v. President of the Hagerstown Bank

²⁵³ Stockbridge, J., delivered the opinion of the court. On March. 3rd, 1906-, the late. Colonel Buchanan Schley desired to purchase, and did purchase through the Hagerstown Bank, one hundred shares of the stock of the Amalgamated Copper Company. The money with which to- make this purchase, $10,775, was advanced by the hank upon a note of which Colonel Schley and George H. Hager were the makers.

The stock, when issued, showed upon its face only the name of Colonel Schley, as owner, and the certificate was indorsed for the purposes of transfer by a blank indorsement on the buck, and was delivered to the Hagerstown Bank as collateral for the loan made. Interest continued to he paid on this note to July, 1919, or approximately three years after the death of Colonel Schley. The plaintiff, George II. Hager, however, held an agreement- under which he was declared to he one-half owner of the stock.

At some time, the date not being absolutely fixed, the Amalgamated Copper Company was bought out by or merged in the Anaconda. Company, so- that at the time of Colonel Schley’s death, or very soon thereafter, the collateral held by the bank was stock of the Anaconda Company as. a substitution for tbe stock of the Amalgamated Copper Company, which had been the original purchase and was mentioned in the note already alluded to. The note was in form a demand note, but no demand appears to have been made until the year 1919 when, Mr. Hager not having paid, the note was called, and upon his- failure to meet the note', this suit was instituted by the bank. The declaration was upon certain of the common counts, and a special count which set out the note already described.

To this pleas were filed of never promised as alleged, never indebted as alleged, payment, discharge and limitations. At the trial of the ease the plaintiff called to the stand John H. Kieffer, the cashier of the bank, bnt no evidence was given tending to show either payment, release, or limitations.. ²⁵⁴ Under the Negotiable Instruments Act, Code, Art. 13, Section 138, the methods by -which a negotiable instrument like the one sued on in this case can he discharged are fully enumerated, and in Vanderford v. Farmers Bank, 105 Md. 167 , it is held that no other method of discharge will suffice. The suit was brought against Mr. Hager and Colonel Schley. The latter was returned morttms esi, hut there was no suggestion of C'olonel Schley’s death entered in the case, nor application upon the part of his personal representatives to he made parties to the suit, and the case continued to judgment, the judgment being; 'against Mr. Hager only.

Eight exceptions were reserved during the taking of the testimony. The first three- all related to- the point whether an order had been given by Mr. Hager in November, 1916, which wasi after the death of Colonel Schley, for the sale of the Anaconda, stock at 104, and these were all excluded. The fourth bill o-f exceptions sought to elicit from the witness his reasons for not selling the stock in accordance with the order of Mr. Hager at 104. The rulings appealed from, covered in these four bills of exceptions, excluding the evidence, were all of them correct.

While in some cases the exclusion of evidence of this character has been upheld upon the ground that the subjects sio-ught to he inquired into involved a question of law rather than a question of fact, yet- the far better ground is that the cashier of a hank is not, simply by virtue of his position