Parr v. City Trust, Safe Deposit & Surety Co.

Fowler, J., delivered the opinion of the Court. The appellee sued the appellant in the Baltimore City Court upon several promissory notes. The narr is in the ulual form, containing the common counts, and a special count on each note in each of which, in addition to the usual allegations, it is alleged that notice of protest and dishonor was waived by the defendant. The general issue was pleaded and issue joined. ²⁹⁷ At the trial the plaintiff offered in evidence the notes sued on and the waiver and proved non-payment—the signatures of defendant being admitted.

There was some other evidence, but the conclusion we have reached renders it unnecessary to refer to it. At the conclusion of the plaintiff’s case the defendant asked the Court to instruct the jury that under the pleadings and evidence in the case there was no legally sufficient evidence to entitle the plaintiff to recover. This prayer was rejected by the Court below, and the verdict being for the plaintiff the defendant has appealed. The rejection of this prayer presentsThe only question we have before us.

It was contended by the plaintiff that the prayer was properly rejected for two reasons, first, because it is too general, and, second, that by the true construction of the waiver of notice of protest it operated as a waiver of protest as well as a waiver of the usual formalities such as presentment and demand, and that therefore there was no failure of proof in these respects because none was required in this case by reason of the waiver. i. First then as to the form of the prayer. It was said nearly fifty years ago by Judge Mason in delivering the opinion of this Court in the case of Hatton v. McClish, 6 Md. 417 , “There have been a great many decisions by the Court of Appeals upon this particular subject, and it would be a far more difficult than profitable task, to attempt to reconcile them.” In the nearly half century which has passed since these words were written the task of reconciling the decisions of this Court upon this question has certainly not become less difficult, nor do we think such an attempt would be any more profitable now than it was then. It is sufficient to say, however, that prayers like the one here objected to, going to the legal sufficiency of the evidence have been uniformly approved by this Court during the past twenty years.

It is true that in some of the quite recent cases, as° for instance in Bullock v. Hunter, 44 Md. 428 ; Gill & McMahon v. Weller, 52 Md. 15 , ²⁹⁸ the first decided in 1875 and the latter in 1879, this rule was apparently departed from. But in very many of the cases relied on by the appellee to show that a prayer going to the legal sufficiency of the evidence is bad, the decisions do not support his contention. Thus in Tyson v. Shueey, 5 Md. 540 , the prayer held bad was “that from the pleadings and evidence in this case the plaintiff is not entitled to recoverin Hatton v. McClish, 6 Md. 407 , the Court was asked to instruct the jury that there was no evidence on which under the pleading in the case they could find for the plaintiff and again in Warner v. Hardy, 6 Md. 525 , the prayer was “that upon the whole evidence it is incompetent for the jury to find for the defendant.” In Dorsey Exc’rs v. Harris, 22 Md. 88 , the same general prayer was offered—that upon the pleadings and evidence the plaintiff was not entitled to recover—and this Court said that as the prayer failed to point out any particular error or omissions in the proof, or to raise any definite question as to its sufficiency it was bad. It is true-that in some of the cases above referred to the general prayer was considered as going to the legal insufficiency of the evidence, and was held bad as in Dorsey Excrs. v. Harris and Hatton v. McClish, supra, because it did not point out any definite question as to its sufficiency.

But, as we have said the practice in this State has become so well-settled now that it is too late to question the form of the prayer granted in this case, namely, “that under the pleadings and evidence in the case there was no legally sufficient evidence to entitle the plaintiff to recover.” Thus in West. Md. R. R. Co. v. Carter, 59 Md. 311 , it was said that a prayer instructing the jury that the plaintiff is not entitled to recover upon the pleadings and all the evidence is entirely too general. “It is quite different,” said Judge Alvey, “from the ordinary prayer or instruction that there is no evidence legally sufficient upon which the plaintiff can recover, or that there is no legally sufficient evidence of a particular fact. By such instruction the point decided is simply the legal insufficiency of the evidence to be considered by the jury.” It is apparent from the language used ²⁹⁹ in the case just cited that the form of prayer here objected to was the usual and ordinary prayer then and theretofore used to question the legal sufficiency of the plaintiff’s case. And so in Co. Commrs. v. Wise, 75 Md. 43 , the present Chief Judge said of such a prayer, it “was a demurrer to the evidence and raised the question of the right of the plaintiff to recover, assuming all the evidence offered by her to be true.” The same prayer is approved in State, use of James v. Kent Co., 83 Md. 383 .

In Hobbs v. Batory, 86 Md. 68 , in commenting