Owen v. Hall

• Decision Date: 10 January 1889
• Citation: 16 A. 376,70 Md. 97
• Parties: OWEN v. HALL.
• Court: Maryland Court of Appeals

16 A. 376

70 Md. 97

OWEN v. HALL.

Court of Appeals of Maryland

January 10, 1889

Appeal from Baltimore city court.

Joseph C. France and Robert E. France, for appellant.

Henry F. Spalding, for appellee.

STONE J.

This was an action of assumpsit brought by Hall, the plaintiff, against Owen, the defendant. The declaration contained the general money counts, and also two special counts,--the first charging Owen, the defendant, as a joint maker of a promissory note for $103, payable four months after date, and the other special count charging him as indorser of the same note. The note was dated 16th September, 1887, and produced at the trial. At the trial of the case the plaintiff proved that in May, 1887, a certain George H. Morrow obtained a loan of $150 from the plaintiff, and gave as security therefor a promissory note signed by himself (Morrow) and indorsed by Owen, the defendant, and that Owen indorsed the note before its delivery to the payee, Hall. Plaintiff also gave evidence tending to show that a portion of said loan was used in a contract in which the defendant and Morrow were jointly interested, at Annapolis. The plaintiff also offered evidence tending to prove that at the maturity of the note given in May, 1887, Morrow paid $50 in part payment of the note, and gave the note dated in September, 1887, as a part renewal of the first note. The plaintiff also gave evidence tending to prove that the defendant Owen indorsed the last-mentioned note before it was delivered to the payee, and that it was not paid at maturity, and was duly protested, and notice given to defendant. The defendant then offered evidence tending to prove that the words "with interest," which are in the note of September, 1887, were inserted after it had passed into the hands of the payee, and without the knowledge and consent of the defendant, Owen; and the plaintiff in rebuttal gave evidence tending to prove that the words were added to the note under the direction and with the consent of the maker, Morrow. Upon this evidence the defendant prayed the court to instruct the jury that if they found that the words "with interest" were written on the note after it had been signed by the defendant, and passed out of his hands, and without his consent, then the plaintiff could not recover against the defendant, and their verdict must be for defendant, although such alteration was made without fraudulent intent. This instruction the court refused to give, but modified it by instructing the jury, if they found those facts, that the plaintiff could not recover on the first or special count in the declaration, which declared on the note of September, 1887. And the court of its own motion also instructed the jury that if they found that in May, 1887, the plaintiff paid $150 for a promissory note signed by Morrow, and that the name of the defendant, Owen was written on the back of said note for the purpose of giving credit to the same before it was delivered to the plaintiff, and that at the maturity of the note a payment was made on account of said note either by Morrow or the defendant, then the jury should find for the plaintiff such sum as they may find to be due upon the same, etc. But if the jury find that the...