Sittig v. Birkenstack

Brent, J., delivered the opinion of the Court. The cause of action in this case is a promissory note for $1500, signed by H. Austermuhle, and endorsed by Catherine Austermuhle, Henry Sittig and Henry Birkenstaek. The declaration contains nine counts — the first six being the ²⁷⁷ common money counts, the seventh charging the appellant as maker, the eighth as guarantor, and the ninth as endorser, with notice of presentation and non-payment. After the testimony was closed, two prayers were offered by the plaintiff and eight by the defendant.

The first prayer of the plaintiff was granted, and the first, fourth, fifth, seventh and eighth prayers of the defendant, as it appears by the record, were rejected. The record also discloses that these prayers of the defendant, with the exception of the first, were eonoeded by the plaintiff’s attorney. The rule is well established, that what is admitted or conceded to be law by the plaintiff or defendant, as the case may be, at the trial of a cause, is binding upon him, and if it is accepted by the other side, it becomes the law of the particular ease. This doctrine is very concisely stated in The Balt. & Ohio R. R. Co. vs. Resley, 14 Md., 442 , where it is said : “ What is admitted to be the law of a case cannot be gainsayed before the jury.” The learned Judge below stated that these prayers should not be used as the law of the Court, and very properly added, “ but that the Court would not interfere with any admissions of the parties in relation thereto.” It would have been inferred from this statement of the rule, that the prayers had been allowed to stand upon the admissions of the parties, and had not been acted upon by the Court with a view either to their rejection or approval, but as tl\ey are marked “ refused,” and also so certified in the hill of exceptions, we are obliged to treat them as having been rejected by the Court, and to conclude that the defendant did not have the benefit of them before the jury.

To this he was clearly entitled, and as there was error in depriving him of the benefit of prayers which the plaintiff had conceded, the judgment must be reversed and the case sent back for a new trial. The plaintiff was not entitled to have the first prayer, which he offered, granted by the Court, for it is inconsistent with the third prayer offered by the defendant, which he con ²⁷⁸ ceded, and which is not included among those rejected by the Court. That prayer instructed the jury, that the plaintiff was entitled to recover if they found from the evidence that the defendant had written his name upon the back of the note as maker, while the third prayer of the defendant instructed them “that the plaintiff cannot recover on the seventh