Ricketts v. Pendleton

Bartol, J., delivered the opinion of this court. We find no error in the ruling of the Superior court upon the question presented by the first bill of exceptions. The alleged agreement between the defendant and H. S. Ward & Co., ³²⁹ was not, per se, evidence in this cause, but we concur with the court below, in the opinion that it was admissible, taken in connection with the other facts, which the defendant proposed to prove, and which were embraced in the offer, namely: “that the plaintiffs, received said note from H. S. Ward & Co., with express notice and actual knowledge of the agreement and understanding on which said note was endorsed by defendant. ” For the purposes of this exception, the fact thus offered to be proved must be taken as true, and is evidence from which the jury might infer that the plaintiffs acquiesced in the agreement and accepted the note, subject to its stipulations and conditions. There can be no doubt that it is competent for a defendant to show by parol that a promissory note, on which he is sued as endorser, was delivered as an escroto, or that it was delivered to the plaintiff to be held upon a condition to be performed before the interest of the holder could attach.

Bell vs. Ingestre, 64 Eng. C. L. Rep., 317. In the case before us, in order to bind the plaintiffs by the alleged agreement, it was necessary for the defendant to prove to the satisfaction of the jury, that they (the plaintiffs) were parties to it, or had knowledge of it, and accepted the promissory note, to be bold by them, subject to its stipulations and conditions. In our opinion, the offer of the defendant was not supported by the proof given under it.

This question might have been raised by an application to the court, based on its legal insufficiency. No such application was made, and we are compelled to pass on the exception, as it was taken at the trial and presented in the record. The second exception brings before us for review,, the action of the Superior court upon the prayers, of which the plaintiffs offered one that was rejected, and the defendant two, which were granted. The plaintiffs’