Smith v. Briscoe

Stone. J., delivered the opinion of the Court. William P. Smith, the appellant, some time in 1883 endorsed a note for six hundred dollars, for a man named ⁵⁶⁶ Boone. This note was discounted for Boone, by the Nat.

Mechanics Bank of Baltimore. When the note fell due, which it did on 8th October, 1883, Boone was unable to pay it, and it was renewed for ten days, by Boone giving another note, for same amount, also endorsed by Smith. This man Boone, whose note Smith had endorsed, was the owner of some property in Baltimore City — some of it lying on Pratt and some on Dover street. The Pratt street property being encumbered with a mortgage.

About the time of Smith’s endorsing this second note for Boone, it seems that Boone came to the conclusion that he could not pay the note, and offered to give Smith a deed for his property, that he might sell it and pay the notes. This Smith declined, on account of other business engagements. Boone then went to Alexander M. Briscoe, the appellee, and to whom he owed eight hundred dollars, and conveyed the property to him. Briscoe then agreed in writing w’ith Smith, that when he sold the property, so conveyed to him by Boone, and had applied one thousand dollars to pay off the mortgage on it and eight hundred dollars to pay his, Briscoe’s, own debt, the balance, to the amount of six hundred dollars, should be paid to Smith, on account of his liability,'as endorser for Boone.

Briscoe at the same time agreed to endorse a note for Smith for six hundred dollars, so as to enable him, Smith, to take up the note he had endorsed for Boone. This note, so endorsed by Briscoe, was not paid at maturity, went to protest, and was finally paid by Briscoe, the endorser, who sued Smith the drawer. The 'defence set up by Smith was, that Briscoe had been guilty of negligence in the sale of the property, and owing to his negligent management the property failed to bring enough to pay the note according to the agreement. It is, in our opinion, a doubtful question whether the doctrine, of re.coupmeut could properly apply to a case ■like the present, had the question been raised in the Court ⁵⁶⁷ below.

It was not however made there, and we will treat Briscoe, as the appellant claimed ho was, as a trustee to sell the property, pay one thousand dollars to a mortgagee and eight hundred to himself and six hundred of the residue, if any, to Smith. It appears that Briscoe offered the Pratt street property for sale, before the maturity of the note that he had endorsed for Smith, but did not get a bid for it. Shortly afterwards the mortgagee sold the property for §1550, which was nearly all taken up in payment of the mortgage debt, expenses, &c. It also appears that Briscoe, some time afterwards, had an offer of §700 for the Dover street property.

The encumbrances on it amounted to §290, and he, Briscoe, offered to divide the balance of §410 with Smith, if Smith would consent to the sale for that. To this Smith consented, and it was done — Smith receiving the $205.23. These are all the facts necessary to state. First as to the prayers.

The plaintiff’s prayer contained all the law applicable to the case. It placed the question of the plaintiff’s negligence, which was the sole defence to the note, fairly before the jury, and directed them if they found that the'property was not sold for enough to pay the $1800, prior liens, and that the plaintiff was not guilty of negligence, that then they should find for the plaintiff, for the amount of the note, less the $205.28 paid. It is not necessary to discuss specifically the defendant’s prayers, as we have said the prayer of the plaintiff covered the whole law applicable to the case ; some of defendant ’s prayers are unsupported by the evidence, and some are erroneous in theory. We.may say on this branch of the case that the agreement between Smith and Briscoe, upon which so much ■stress was laid, means clearly that Smith was to pay the note at maturity, unless in the meantime Briscoe should sell the property for more than the $1800. ⁵⁶⁸ Secondly, as to the admissibility of the evidence.

It was shown by defendant that the Pratt street property had been sold at public sale by the mortgagee, and the sale ratified by a Court of competent jurisdiction; also that the plaintiff had offered the property at public sale without obtaining a bid. The defendant after offering the record to prove that the property sold for a certain sum, and that the sale had been ratified by a Court of competent jurisdiction, was precluded from attempting to show by parol that it was worth more — no fraud in such sale being charged. Nor could, the defendant be permitted to prove the' value of the Dover street property, when he had agreed to its sale for a sum certain, and