9 Ohio St. 1 (Ohio 1858), Hollister v. Reznor

Citation9 Ohio St. 1
Opinion JudgePECK
Party NameJOHN HOLLISTER AND JOHN W. SMITH v. JOHN P. REZNOR
AttorneyJames Murray, for plaintiffs in error, P. B. Wilcox (with whom was W. Baker), for defendant in error, argued:
Judge PanelPECK, J. SWAN, C. J., and BRINKERHOFF and SCOTT, JJ., concurred. SUTLIFF, J., dissenting. SUTLIFF
CourtUnited States State Supreme Court of Ohio

Page 1

9 Ohio St. 1 (Ohio 1858)

JOHN HOLLISTER AND JOHN W. SMITH

v.

JOHN P. REZNOR

Supreme Court of Ohio

December, 1858

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[Syllabus Material]

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IN error to the District Court of Lucas County.

The original action was assumpsit, brought upon a bill of exchange drawn by J. W. Smith upon W. H. Sabin, payable to the order of John Hollister.

The action was brought by John P. Reznor, as indorsee, against Smith as drawer, and Hollister as indorser.

Plea -- the general issue.

Hollister indorsed the bill in blank to William P. Reznor, who transferred it to his brother, John P. Reznor.

The cause was tried to a jury at the April term, 1855, of the district court, on appeal, and resulted in a verdict for the plaintiff below.

Thereupon Hollister and Smith, defendants below, moved the court for a new trial, on the ground that the verdict was against the evidence, and that the court had improperly refused to permit them to give certain evidence to the jury. The court overruled this motion, and rendered judgment upon the verdict.

To reverse this judgment, Hollister and Smith filed their petition in error, in this court.

A bill of exceptions was taken on the trial in the district court. When the bill of exceptions was signed and sealed, the words "and before transfer to plaintiff," which occur in the portion of the bill of exceptions quoted below, were in it. Afterward they were erased by the presiding judge; but in obedience to a mandate of the supreme court (Hollister and Smith v. The Judges of the District Court of Lucas County, 8 Ohio St. Rep. 201), said words were restored to the bill of exceptions.

The bill of exceptions, after setting out the bill of exchange, and other evidence, contains the following statement, and on which the case turns, viz.: "And thereupon the defendants, further to maintain the issue on their part, produced on the stand, as a witness, one John Bates, and offered to prove by said witness certain conversations that then and there took place between said witness and William P. Reznor, a year or two prior to the commencement of this suit, and before transfer to plaintiff, in regard to said draft, and the liability of the parties thereon. To the admission of all which evidence, plaintiff objected, and the court then and there sustained said exceptions, and refused to permit the defendants to prove said conversations. To all which, defendants then and there excepted."

The errors assigned are, that the court below refused to permit the defendants below to prove "said conversations" -- rejected John Bates as a witness -- and overruled their motion for a new trial.

We are therefore of the opinion that the judgment of the district court now in review ought to be and it hereby is affirmed, with costs.

SYLLABUS

In an action by a holder of a bill of exchange against the other parties thereon, it is competent to prove declarations made by a prior holder, before the transfer and after the dishonor of the bill, showing that the parties were discharged from liability.

But the substance of the declarations, or sufficient of them to show their tendency and effect, should appear in the bill of exceptions taken to the ruling of the court below excluding proof of such declarations, so that the reviewing court may be advised that the party may have been prejudiced by such ruling. And, therefore, where a witness is produced on the part of the defense in such action, to prove certain conversations touching the liability of the parties to the bill, and the court sustain an objection to the competency of the proof offered, but not to the competency of the witness, and the bill of exceptions does not disclose what the conversations were, which were offered to be proved, nor their tendency and effect, the reviewing court will not reverse.

James Murray, for plaintiffs in error, insisted, that the admissions by the assignor of a chose in action made while he is the owner thereof and before assignment, are evidence against his assignee, and all claiming under him, and cited Brown v. McGraw, 10 S. & M. Rep. 267; Jackson, Cox & Co. v. Holloway, 14 B. Mon. Rep. 137; Horton v. Smith, 8 Ala. Rep. 73; Sharp v. Smith, 7 Rich. S. C. Rep. 3; Blount v. Riley, 3 Ind. Rep. 471; Abbott v. Muir, 5 Ind. Rep. 444; Miller v. Bingham, 3 Williams (Vermont) Rep. 82.

P. B. Wilcox (with whom was W. Baker), for defendant in error, argued:

The cases cited on the other side do not meet the question. The court will find the doctrine on this subject discussed in Byles on Bills of Exchange, 352, and numerous other cases there cited. See also 2 Phil. Ev., pp. 644, 663, 387, and notes, 446, 481; 1 Greenleaf Ev., p. 222, sec. 190. If the court should come to the conclusion, that W. P. Reznor did stand in such position that his declarations are admissible; still, we claim, on two grounds, that no error whatsoever hath intervened, in that respect, neither in form nor substance.

1. The bill of exceptions discloses no error whatever.

The court below refused to allow John Bates to tell "certain conversations" he had with Reznor, in regard to "said draft," and the "liability" of the parties thereon.

But, what were these conversations? What did Reznor tell Bates? Did he say the draft was a good one? or a bad one? False, or genuine? Or, what did he say? Did he say the parties were liable? or, not liable? and why? or why not? or which party? or what did he say? Who knows? What ideas does this phrase, "certain conversations" with John Bates, now convey to the minds of this court? To any body's mind? What possible ideas, except that there was a man called John Bates, and that he talked, sometimes, with W. P. Reznor?

Now, at common law, before bills of exception were known, the error complained of must appear, affirmatively, on the record. Coke's Lit. 29, b.

And the record always had to show what his grief was. 1 Aikin 380.

And the same rule has always been applied to bills of exception since they were introduced. 1 Mason 57; 4 Cranch 62, 64; 1 Morris 364; 7 Iredell 239; 1 Kelley 1; 2 S. & M. 473; 7 Misso. 293; 3 Litt. 15; 5 Johns. 467; 40 Me. 274; 3 Comst. 322; 10 Tex. 503.

The same rule is constantly acted upon in Ohio. 17 Ohio Rep. 495. See also 14 Ohio Rep. 473; 17 Ohio Rep. 439; 16 Ohio Rep. 170, 282; 18 Ohio Rep. 28, 122; 7 Ohio Rep. 214; 4 Ohio St. Rep. 159.

2. All the testimony in the case is not disclosed.

The rule of law is too well settled in this court to require references. See cases above cited. Also 14 Ark. 298; 3 T. R. 27; 1 Aikin 380.

PECK, J. SWAN, C. J., and BRINKERHOFF and SCOTT, JJ., concurred. SUTLIFF, J., dissenting.

OPINION

PECK

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The principal and indeed only ground, taken in the argument, for the reversal of this judgment, is the alleged error of the district court, occurring at the trial, in not permitting John Bates, a witness produced by the plaintiffs in error, to prove "certain conversations" had between

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him and Wm. P. Reznor, an intermediate owner of the bill, some time after its maturity, and while the bill was the property of said W. P. Reznor, touching the bill and the liability of the parties thereon. That part of the bill of exceptions, which relates to the production of said witness and the rejection of his testimony by the court, appears in the statement of the case.

According to the bill of exceptions, the district court of Lucas county refused to permit proof of statements made by the holder and owner of a dishonored bill, upon which other parties were...

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7 practice notes
  • 38 Ohio St. 606 (Ohio 1883), Proseck v. State
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...1 Ohio St. 399; Washington C. C. 422. 3. The plaintiff in error must be held upon the express terms of the recognizance if at all. 9 Ohio St. 11-22; 20 Ohio 97, 98; 1 Ohio St. 399; 13 Ohio 176; 23 Ohio St. 320. Wilson & Sykora, for the defendant in error: As to the effect of the omissio......
  • 33 Ohio St. 444 (Ohio 1878), Bean v. Green
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...must appear to be something material, the rejection of which as evidence would be prejudicial to the party excepting. 6 Ohio St. 294, 295; 9 Ohio St. 1; 11 Ohio St. 114; 17 Ohio St. 628; 19 Ohio St. 573; Page 448 26 Ohio St. 371; Stull v. Wilcox, 2 Ohio St. 570. The rule, in civil and crimi......
  • 24 Ohio St. 581 (Ohio 1874), Kirk v. Mowry
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...v. Ohio, 6 Ohio St. 288; Reynolds v. Ex'rs of Rogers, 5 Ohio 171, 172; May v. Ohio, 14 Ohio 467, 468; Hollister & Smith v. Reznor, 9 Ohio St. 1-6. The same principle is enacted in the code, sections 138 and 295. DAY, C. J. McILVAINE, WELCH, WHITE, and REX, JJ., concurring. OPINION DAY, ......
  • 17 Ohio St. 302 (Ohio 1867), Monroe v. Barclay
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...was quite as favorable to the plaintiffs in error as is the law. The charge is to be construed favorably to the support of the judgment. 9 Ohio St. 9. The gist of all four of propositions 16, 17, 18 and 19, which plaintiffs in error requested the court to give in charge to the jury, is a fr......
  • Request a trial to view additional results
7 cases
  • 38 Ohio St. 606 (Ohio 1883), Proseck v. State
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...1 Ohio St. 399; Washington C. C. 422. 3. The plaintiff in error must be held upon the express terms of the recognizance if at all. 9 Ohio St. 11-22; 20 Ohio 97, 98; 1 Ohio St. 399; 13 Ohio 176; 23 Ohio St. 320. Wilson & Sykora, for the defendant in error: As to the effect of the omissio......
  • 33 Ohio St. 444 (Ohio 1878), Bean v. Green
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...must appear to be something material, the rejection of which as evidence would be prejudicial to the party excepting. 6 Ohio St. 294, 295; 9 Ohio St. 1; 11 Ohio St. 114; 17 Ohio St. 628; 19 Ohio St. 573; Page 448 26 Ohio St. 371; Stull v. Wilcox, 2 Ohio St. 570. The rule, in civil and crimi......
  • 24 Ohio St. 581 (Ohio 1874), Kirk v. Mowry
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...v. Ohio, 6 Ohio St. 288; Reynolds v. Ex'rs of Rogers, 5 Ohio 171, 172; May v. Ohio, 14 Ohio 467, 468; Hollister & Smith v. Reznor, 9 Ohio St. 1-6. The same principle is enacted in the code, sections 138 and 295. DAY, C. J. McILVAINE, WELCH, WHITE, and REX, JJ., concurring. OPINION DAY, ......
  • 17 Ohio St. 302 (Ohio 1867), Monroe v. Barclay
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...was quite as favorable to the plaintiffs in error as is the law. The charge is to be construed favorably to the support of the judgment. 9 Ohio St. 9. The gist of all four of propositions 16, 17, 18 and 19, which plaintiffs in error requested the court to give in charge to the jury, is a fr......
  • Request a trial to view additional results

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