McCarty v. Harris

Suit was brought by the administrator of Benjamin G. Harris against William F. McCarty on certain promissory notes made by the latter and payable to the plaintiff’s decedent. The defendant pleaded never promised, never indebted and also specially that the notes sued on had been given' by the defendant to Benjamin G. Harris, whilst Harris and the defendant were co-partners, and that the notes had relation to a partnership transaction which has not yet .been consummated inasmuch as the affairs of the partnership have not been adjusted. Issue was joined on the first and second pleas; the third plea was traversed and upon this traverse an issue was framed. The case then went to trial; the signature to the notes was proved to be in the handwriting of the defendant, though that was unnecessary because the pleadings did not put that fact in issue. {Code, Art. 75, sec. 23, sub-sec. 108), and .considerable evidence was adduced tending to show that the intestate and the defendant had been jointly engáged in an enterprise- and that these notes had relation to and were the ⁷⁴² outgrowth of that venture.

There was also evidence tending to show that the notes had no connection with the alleged partnership at all, but .concerned .individual transactions. In this state of the evidence prayers founded on these contrary theories were presented. The Baltimore City Court rejected all the prayers on both sides and gave the following instructions of its own: “If the jury believe that the promissory notes sued on were given by the defendant to Benjamin G. Harris, the decedent, for money due to said Harris by him, or for money lent by said Harris to defendants, then the plaintiff is entitled to recover. But if the jury believe that no money was due by the defendant to said Harris, and that said notes were accommodation paper, given to said Harris in order that he might raise money on them for his own purposes, or for some enterprise in which both were jointly interested, then the plaintiff is not entitled to recover.” To the refusal of the Court to grant the prayers of the defendant the latter excepted ; but it is not at all clear whether he also excepted to the giving of the instructions which the Court substituted for all the prayers.

The only bill of exceptions in the record states that “the Court rejected each and all of the said prayers which were offered by defendant and gave instructions in lieu of .said prayers; to all of which rejection and modification of said prayers so offered by the defendant and each and every of them the defendant excepted,” &c. The defendant’s prayers were not modified by the Court but were