Owen v. Hall

Stone, J., delivered the opinion of the Court. This was an action of assumpsit brought by Hall, the plaintiff, against Owen, the defendant. The declaration contained the general money counts and also ⁹⁸ two special counts, the first charging Owen, the defendant, as a joint maker of a promissory note for $103.60, payable four months after date, and the other special count charging him as endorser of the same note. The note was dated 16th September, 1881, and produced at the trial.

At the trial of the case, the plaintiff proved that in May, 1881, a certain George H. Morrow obtained a loan of one hundred and fifty dollars from the plaintiff, and gave as security therefor a promissory note signed by himself, Morrow, and endorsed by Owen, the defendant, and that Owen endorsed the note before its delivery to the payee, Hall. Plaintiff also gave evidence tending to show that a portion of said loan was used in a contract in which the defendant and Morrow were jointly interested, at Annapolis. The plaintiff also offered evidence tending to prove that at the maturity of the note given in May, 1881, Morrow paid fifty dollars in part payment of the note, and gave the note dated in September, 1881, as" a part renewal of the first note. The plaintiff also gave evidence tending to prove that the defendant, Owen, endorsed the last mentioned note before it was delivered to the payee, and that it was not paid at maturity, and was duly protested and notice given to the defendant.

The defendant then offered evidence tending to prove that the words “wfith interest” which are in the note of September, 1881, were inserted after it had passed into the hands of the payee, and without the knowledge and consent of the defendant, Owen, and the plaintiff in rebuttal gave evidence tending to prove that the words were added to the note under the direction and with the consent of the maker, Morrow. Upon this evidence the defendant prayed the Court to instruct the jury that if they found that the words ⁹⁹ “with interest” were written on the note after it had been signed by the defendant and passed out of his hands, and without his consent, then the plaintiff could not recover against the defendant, and their verdict must he for defendant, although such alteration was made without fraudulent intent. This instruction the Court refused to give, hut modified it by instructing the jury, that if they found those facts, the plaintiff could not recover on the first or special count in the declaration, which declared on the note of September, 1887. And the Court of its own motion also instructed the jury that if they found that in May, 1887, the plaintiff paid one hundred and fifty dollars for a. promissory note signed by Morrow, and that the name of the defendant Owen was written on the hack of said note for the purpose of giving credit to the same, before it was delivered to the plaintiff, and that at the maturity of the note a payment was made on account of said note either by Morrow or the defendant, then the jury should find for the plaintiff such sum as they may find to he due upo'n the same, &c.

But if the jury find that the said note was endorsed by the defendant, Owen, for the accommodation of the plaintiff and