Sunderland v. Cowan

Rogers, J., delivered-the opinion of the Court. This is an appeal from the Superior Court of Baltimore City. ⁴⁵⁷ The appellee, John Cowan, gave his promissory note for fifteen hundred dollars to Albert ]. Hoskins, as balance due him on three thousand and eight hundred and ten shares of the American Graphite Company, dated March 20th, 1902, payable twelve months after date; providing, however, that at the expiration of twelve months from date, the said stock must be marketable at fifty cents per share at least, otherwise this note is null and void and not collectible. Hoskins, for value, first endorsed and then assigned the note to the appellant; the note not being paid when due, the appellant brought suit thereon against Cowan.

The narr. contained the usual common counts and also counts five, six, seven, eight and nine on the contract in writing, to which the defendant filed the pleas: Never promised as alleged. Was never indebted as alleged. The case was tried before the Court and a jury. At the close of the plaintiff’s case, under instructions from the Court, the jury rendered a verdict for the defendant, from which this appeal is taken.

And we are called upon to review the action of the Court in granting the defendant’s prayer and thus taking the case from the jury. The prayer is in these words: “The defendant prays the Court to instruct the jury that there is no evidence in this case legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendant.’’ Whenever evidence is so inconclusive that no well constituted mind can infer from it the fact which it is offered to establish, it becomes the duty of the Court, when requested, to instruct the jury that the evidence is insufficient to justify their finding the fact attempted to be proved. Brady v. Con. Gas Co., 85 Md. 641 ; Tyson v. Tyson, 37 Md. 581 .

So we must turn to the record to learn what evidence the plaintiff did offer to sustain his contention. We will observe that the note being non-negotiable, the title thereto could only pass by a written assignment; that preliminary being complied with the assignee could sue in his own name. Bank v. Green, 37 Md. 605 ; Code, 1904, sec. 1, Art. 8. The note is in these words: ⁴⁵⁸ $1500.00 Baltimore, Md. March 20th, 1902.

Twelve months after date I promise to pay to Albert J. Hoskins or order Fifteen hundred dollars as balance due him on thirty-eight hundred and ten shares of stock in the American Graphite Company, providimg however that at the expiration of twelve months from above date, the said stock must be marketable at fifty cents per share at least, otherwise this note is null and void and not collectible. John Cowan. Endorsed March 22nd, 1902, pay to the order of John C. Sunderland. Albert J. Hoskins.

Whereas, John Cowan on March 20th, 1902, made and passed to me his promissory note or promise to pay reads as follows: “Balto., Md. Mar. 20, 1902. Twelve months after date I promise to pay to Albert J. Hoskins or order, Fifteen Hundred Dollars, as balance due him on Thirty-eight hundred and ten shares of stock in The American Graphite Company, providing, however, that at the expiration of twelve months from above date, the said stock must be marketable at fifty cents per share at least, otherwise this note is null and void and not collectible. John Cowan.” And whereas, on the 22nd day of March, 1902, I, AJbertJ. Hoskins, intended to transfer all of my right, title and interest in and to said promissory note, contract to pay or instrument of writing, by endorsement on the back thereof to John C. Sunderland.

And whereas, such endorsement has not been deemed sufficient; Now therefore witnesseth, that I, Albert J. Hoskins, in considerations of the premises and of the sum of one dollar, and other valuable considerations, do hereby transfer and assign to John C. Sunderland, all my right, title and interest, both in law and in equity, in and to the above promissory note, or contract to pay. ⁴⁵⁹ Witness my hand and seal this 5th day of September in the year 1903. Albert J. Hoskins (seal) The plaintiff then proved by the maker, John Cown, that he signedthe note in question. The plaintiff then proved by John C. Sunderland, plaintiff in this case,