Herrick v. Swomley

Grason, J., delivered the opinion of the Court. This suit was instituted by the appellants, the plaintiffs below, upon a promissory note for eight hundred dollars, made by the appellee on the ninth day of September, 1818, and payable to George W. Herrick or bearer, thirty days after dat,e. The note is alleged to have been indorsed by G. W.' Herrick in blank, and the blank was filled up at the trial with the names of the plaintiffs. At the trial of the case below the appellants reserved thirty-six exceptions to the rulings of the Court upon evidence, and offered eighteen prayers, the first, sixth, eighth, thirteenth, fifteenth and seventeenth of which were granted, and the others refused; and the appellee offered thirteen prayers, the fourth, seventh, eighth, ninth, eleventh, twelfth and thirteenth of which were granted, and the others rejected, and the verdict and judgment being for the defendant, the plaintiffs have taken this appeal; and we shall dispose of the exceptions in the order in which they were taken.

First Exception. — The plaintiffs proved, by the witness Wood, that he knew the defendant, and his hand-writing, ⁴⁵⁵ and that the note sued on was in the defendant’s handwriting, and that defendant told him that he had drawn the note and signed it. The witness was then' cross-examined by the defendant’s counsel, and was asked “ when he first saw the note?” This question was objected to, and the objection was overruled, and the question was put and answered by the witness, that he first saw the note about fourteen days before its maturity. This forms the subject of the first exception. It is true, that when a witness has been examined by one party with reference to particular facts, it is not competent for the other party to examine him with reference to other 'and distinct facts, not connected with the facts as to which he has been examined in chief, without the party thus wishing to examine him, making him his own witness.

Phila. & Trenton R. R,. Co. vs. Simpson, 14 Peters, 448 ; Griffith vs. Diffenderffer and others, 50 Md., 418 . Rut in this case the witness had testified in chief as to his knowledge of the defendant’s hand-writing, had examined the note, and had proved that it was in the hand-writing of the defendant, and the question asked related to the note and tended to elicit from witness what opportunities he had had of examining the signature, and was therefore germane to the subject-matter of his examination in chief, and therefore admissible. Griffith vs. Diffenderffer, 50 Md., 478 .

Second Exception. — The witness was then asked who showed him the note, and the plaintiffs’ counsel objected to this question, the objection was overruled, and the second exception was taken to this ruling. What we have said with regard to the first exception applies also to this.. Third, Fourth, Fifth and Sixth Exceptions. — In these exceptions evidence was given on the part of the defendant, tending to prove that the note did not pass into the hands ef the plaintiffs until after its maturity. The narr. alleged, that it had come into the hands of the plaintiffs before maturity, and Peter Herrick, one of the plaintiffs, ⁴⁵⁶ had sworn that he received it enclosed in a letter from George W. Herrtck, while he, Peter, was in Minnesota, in the latter part of September, 1818.

The narr. having averred that the note sued on had been assigned to the plaintiffs before maturity, the general issue plea put in issue all the averments of the narr. If it could be proved that the note was not assigned before its maturity, then the plaintiffs took cum onere, and the defendant had the right to make all defences to the suit, which he could have made had the suit been instituted by the. payee of the note. In this country, under the general issue, the defendant may offer any evidence tending to show that the plaintiff has no right to recover. 2 Greenleaf’s Ev., sec. 135; Poe on Plead., 512. The evidence offered in the third, fourth, fifth and sixth exceptions was therefore-properly admitted.

Seventh and Eighth Exceptions. — The questions asked and the evidence given in response thereto in these two exceptions, were with reference to George W.- Herrick’s business, and the course and manner of that business. This evidence was admissible to show that George W. Herrick was the mere agent of a certain nurseryman, in the State of New York, named Bentley, to sell trees, vines, &c. As he had dealt with the defendant as agent, it was competent to show that fact and others within his agency. But even if the proof as given in these exceptions was inadmissible, it is impossible to see in what respect the plaintiffs could have been injured by it, and the judgment will not be reversed therefor. ■Ninth Exception. — This exception was taken to the refusal of the Court, to permit to be read to the jury, a telegram sent by George W. Herrick to Bentley, on the 2nd November, 1818, to send package to Picking', to the Dell House, at Frederick City.

Picking had testified for defendant, to prove that he had seen the note sued on, and to trace its possession down to the time of and after its maturity ⁴⁵⁷ and on cross-examination, had proved that the note had gone through his hands into Bentley’s, and that he had written a dispatch to Bentley to return it, hut that George W. Herrick had signed it. We cannot perceive what possible hearing the telegram had upon the issue to he determined. It was wholly immaterial and irrelevant, and was properly rejected. Tenth Exception. — Howard Hartsock, a witness for defendant, testified that George W. Herrick had been at his house at Union Bridge, from 23rd September, till the 13th October, 1878, having been absent during that time a few days at a time, and his hook showed that he had taken one meal on the 4th October, and was then absent till October 7th.

This witness also proved that while at his house, George W. Herrick had held conversations with witness as to what persons at Union Bridge bought notes. He was then asked whether it was before or after the 4th October, that George W. Herrick first left the house of witness? The question was certainly admissible. But as the record does not show that the question was answered, we cannot say that the plaintiffs were injured, even had the question been legally inadmissible.

Eleventh Exception. — After the defendant, Swomley, had testified that George W. Herrick had visited the defendant’s house, and sold him grape-vines, to the amount of nine dollars, and taken witness’ order for them, and that he had endeavored to induce defendant to enter upon grape culture, and purchase his grape-vines from said Herrick, hut that he had declined to do so, and had after-wards called to see Mr. Hinks, the attorney, who had visited him with Herrick, and at Herrick’s instance, had drawn up an agreement for Herrick and Swomley to sign, with reference to a partnership between Herrick and Swomley, which he, Swomley, had refused to sign, he was asked to state the conversation he then had with Hinks, in regard to the order which George W. Herrick had in ⁴⁵⁸ his possession from him, Swomley, for $1225.00 worth of grape-vines, the offer being to prove that the witness had a conversation with said Hints, in which he said that if Herrick had any such order from him, it was a forgery; and that Herrick was a maniac on the subject of fruit culture, and that Hints communicated this conversation to George W. Herrick. This question was objected to, but the Court overruled the objection, and permitted the question to be asked and answered, and to this ruling the plaintiffs took this, their eleventh exception. If the note still remained in the possession of, and the property of, George W. Herrick, the payee, to the time of and after its maturity, the plaintiffs took it cum onere, and in this suit by the plaintiffs, Swomley was at liberty, as we have before said, to avail himself of the same defences, which would have been open to him, if the suit bad been instituted by the payee himself. That he was so in possession •at its maturity, some evidence had been offered by Swomley, and the evidence offered in this exception led up to the consideration of the note, upon which the suit was brought, and was admissible in evidence, although George W. Herrick was not a party to the suit, and the evidence admitted, tended to impeach that note.

Ringgold vs. Tyson, 3 H. & J., 112 . Tioelfth Exception. — This exception was taken to the ruling of the Court below, by which the letter of the defendant, dated October 4th, 1818, was excluded from the consideration of the jury. The letter to which it purports to be an answer had not been offered in evidence, without which the letter of defendant was unintelligible, and the letter which was sought to he introduced referred to vines, which had been the subject .of a letter previously written by George W. Herrick to the defendant, and which Herrick was desirous of selling to the defendant. This letter was written on the 4th day of October, some time after the date of the note sued on, and had no bearing ⁴⁵⁹ whatever on the subject-matter of the suit, and it was therefore properly rejected.

Thirteenth Exception. — The defendant was asked by plaintiffs’ counsel, whether he had ever told'Joseph Wood and Dr. J. N. Wood, at the latter’s office, at New Market, on or about October 9th, 1818, that he had gone to Berlin, and bought grape-vines much cheaper than he bought them from Herrick, for the purpose of rebutting evidence of fraud offered by the defendant, the offer being coupled with the further offer of evidence, to show that the defendant gave or executed orders for vines at that time. This evidence was clearly inadmissible. The conversation and the transactions to which the proof, offered and rejected, related, took place some time after the sale alleged to have been made by George W. Herrick to the defendant, and after the note for eight hundred dollars, the cause of action in this case, had been executed, and had no connection with it. Fourteenth and Fifteenth Exceptions. — The time when the defendant first took advice of counsel, as to his liability on the note for eight hundred dollars was utterly immaterial, and the Court was right in refusing to allow the question with respect to it to be put or answered.

So also was the question to the defendant, as to where or of whom he purchased the nursery stock he set out in the fall of 1818. These two exceptions seemed to have been abandoned, as they are not relied on in the brief. Sixteenth, Seventeenth, Eighteenth and Nineteenth Exceptions. — -To the questions allowed by the Court to be put to the respective witnesses, no answers appear in the record, and we cannot, therefore, see that the plaintiffs were injured by the questions being put, and consequently the judgment cannot be reversed on these exceptions. Twentieth and Twenty-first Exceptions.- — -The first of these two exceptions was taken to the Court’s refusal to permit an expert in hand-writing, who had never seen ⁴⁶⁰ Picking, a witness in this case, write, to testify whether the signature to the telegram, dated Novembér 2nd, 1878, was in said Picking’s hand-wliting; and the second was taken to the ” Court’s refusal to admit evidence of the defendant’s hand-writing to the order for $1225, which evidence was offered to he, given by an expert, who had never seen Swomley write, but who had for a day, during the trial examined said signature and compared it with the genuine signatures of said Swomley to other papers, which were in evidence.

There is some difference in the decisions on these points, and there was also a difference of opinion of the Judges of this Court in the case of Tome vs. Parkersburg R. Road, 39 Md., 92 ; but the majority of the Court held that it was not competent to prove hand.-writing in this way, and we are bound by the decision in that case to hold that the evidence offered in these exceptions was properly excluded. Twenty-second Exception. — We have already stated, in considering the ninth exception, that the telegram, dated 2nd November, 1878, and purporting to be signed by W. H. Picking was not admissible in evidence; and it therefore follows, that any evidence as to whether that telegram was or was not written by Picking, and signed' by him, or whether it was forged, was immaterial, and the question propounded to the witness was inadmissible. Twenty-third, and. Twenty-fourth Exceptions. — The offer to prove that Joseph Wood had offered George W. Herrick $750 for the note of eight hundred dollars was inadmissible.

It was not coupled with an offer to prove that the witness, Herrick, had refused the offer, and even if it had been, it was irrelevant and immaterial. The offer contained in this exception as well as the question propounded to this witness in the twenty-fourth exception, as to whether he was the owner of the note sued on, at any time since the 23vd day of September,. 1878, was also objectionable upon another ground. It is true that after ⁴⁶¹ the plaintiffs had proved the execution of the note, and the assignment of it to the plaintiffs, they might have rested their case. But instead of doing so, they offered