Walz v. Alback

Bowie, J., delivered the opinion of the Court. The appellee instituted suit on the 8th of July, 1872, in the Court of Common Pleas of Baltimore City, against the appellant, and filed her narr. in the form of an action ⁴⁰⁷ of assumpsit, containing the usual common counts, and a special count, on a promissory note of the appellant, dated the tenth of May, 1870, for five hundred dollars, (then over due,) payable two months after date to the appellee’s testator. The appellant pleaded that he never promised as alleged, and secondly, that he never was indebted as alleged. At the trial, the plaintiff, to support the issue joined on her part, produced Peter Hermann., a competent witness, to prove the signature of the appellant, to the note, and also offered evidence tending to prove that the note, which was as follows: “$500.00.

Baltimore, May 10th, 1870. “Two months after date I promise to pay to the order of John Alback five hundred dollars, at-; value received. Peter Hermann . ’ ’ “Endorsed: John Wolf. “ (U. S. Stamp, duly cancelled, 25 cts.) was delivered to the testator of the plaintiff, before its maturity, and that at the lime it was so delivered the name of the defendant, was written across the hack of it; and also proved by the said witness that he, “Peter Hermann,” had before the delivery of the note, sighed his name thereto. 'On cross-examination of the witness, the appellant asked him “for whose benefit was the note in question given?” which question being objected to by the appellee, the Court below excluded the same, to which ruling the appellant excepted. The appellee then prayed the Court to instruct the jury “ that if they believed from the evidence in the case, that the name of John Walz, the defendant, was written by him on the back of the note offered in evidence at the time or before said note was signed by Peter Hermann, and before it was delivered by the said Peter Hermann to the said John Alback, deceased, then they are to find for the ⁴⁰⁸ plaintiff; provided they believe that the plaintiff is the executrix of said John Alback, deceased, and provided they believe that said note was delivered by said Peter Hermann to said John Alback, deceased, in the life-time of said John Alback,” which being granted, the appellant excepted. The appellant then submitted three prayers, being the converse of the propositions embraced in the appellee’s, and which are substantially as follows: 1st.

That there is no sufficient evidence in the case to ■entitle the plaintiff to recover. 2d. “That the note itself is not prima facie evidence that the defendant placed his name on the back of the note as an individual maker thereof.” 3d. “That the defendant is not liable in this action, upon the promissory note sued bn in the case, unless they (the jury) find from the evidence in the cause that a demand has been made upon Peter Hermann, maker, and notice of non-payment to the endorser, John Walz, upon said note.” The appellant in his brief and argument contends that the rulings of the Court below in excluding the question-propounded by the appellant, in the first bill of exceptions, deprived the defendant of the right of enquiry into the consideration of the note, and asserts that the maker of the note, and the one primarily liable being produced en the part of the appellee,