Bannon v. Warfield

• Decision Date: 10 March 1875
• Citation: 42 Md. 22
• Parties: MICHAEL BANNON v. SETH W. WARFIELD.
• Court: Maryland Court of Appeals

42 Md. 22

MICHAEL BANNON v. SETH W. WARFIELD.

Court of Appeals of Maryland

March 10, 1875

APPEAL from the Circuit Court for Anne Arundel County.

First Exception.--This exception is stated in the opinion of the Court.

Second Exception.--The defendant to maintain the issues on his part, being examined as a witness, testified as follows: About two weeks before the 8th of October, 1868, Mr James Revell applied to me to borrow for his brother, Dr. W T. Revell, the sum of fifteen hundred dollars, on his note and mortgage on his farm; I told him I had no money, but was expecting some to come in from a gentleman named Attrill, who had stated when he borrowed the money that he might pay it off in advance; the money was due to the plaintiff; I afterwards acquainted the plaintiff with the fact that Mr Revell had applied to me to borrow $1500 for Dr. Revell; he said he had no money; I told him that his money due by Attrill would come in before maturity; that I had examined the farm of Dr. Revell, which I described and the improvements; told him the land was worth in the neighborhood of $60 per acre; and I told him all about it; I also told him that Mr. James Revell would prepare the note and mortgage, to be executed by his brother and his wife; Mr. Warfield told me to lend this money to Dr. Revell when I got it in from Attrill; Mr. Revell came to my office in Baltimore, on the 8th October, 1868; I told him the condition of the loan; that Mr. Warfield would charge ten per cent. and that the bonus of sixty dollars would have to come off; he asked me to let him have the money then as judgments were pressing his brother, and said he would give me his note at ten days, which would give time to examine the title, I gave him my check for $1440, and he drew and gave me his note for that amount at ten days, on condition that as soon as I received the note and mortgage from his brother, I should mail to him his ten days note; Attrill, the gentleman who had borrowed Mr. Warfield's money, came to my office to get his note for $1500 which Mr. Warfield held; Mr. Warfield came to my office and I told him the gentleman wanted the note, and he asked what security am I to have until Mr. Revell prepares the note and mortgage for his brother; I told him that the money was needed to pay judgments due by Dr. Revell, that I had Mr. James Revell's note for this money, and that I was to return it to him whenever he sent me the note and mortgage, and that I could give it to him on condition that as soon as I got the note and mortgage he would return it to me; I was to send him word and he was to bring the note; the note of Dr. Revell's was to bear date of the day James Revell got the money; he said that was satisfactory; he only wanted to have something to show where the money was in the interim; the date of the delivering of James Revell's note to Mr. Warfield I don't remember, he was not in town for a month or more after; when he came down I gave it to him, I told him I had received from J. Revell his brother's note, but not the mortgage; some delays had occurred on account of the sickness of Mrs. Revell as I would not take the mortgage without her signature; I told Mr. Warfield that I had received the note, but not the mortgage; he said never mind, you hold on to the note until I come down again, and when you get the mortgage put it on record; he came in sometime after this and asked me if I had received the mortgage: I told him, yes, and that I had sent it for record to Annapolis; he said that was all right; he had previously given me instructions to have it recorded when I received it; it ran on in this way until a year expired, when he told me that Dr. Revell had not paid any interest; I said I would write to James Revell and did so; Warfield came again and said he had heard nothing from me or Dr. Revell; I suggested to him to go to Annapolis and see James Revell or to go to see Dr. Revell; * * * * I gave to the plaintiff James Revell's note about a month after I received it; I offered this note of Dr. Revell's to Mr. Warfield six or eight months, it may have been eight or nine months, afterwards, I told him about Mr. Revell's demanding this note of his, and he never gave it up to me; Mr. Revell was dunning me, and demanding his note; I could not offer Mr. Warfield Dr. Revell's note, until I got the mortgage, because the transaction was not complete until then, and Mr. Revell was in no condition until then to demand his note. I was acting in this transaction as agent for the plaintiff, and always consulted him about the matter, and he acquiesced in what I did. I never got a dollar from Mr. Warfield or any one else in this transaction. The defendant offered in evidence the note for $1500 from Dr. Revell, dated 8th of October, 1868, and also the mortgage from him and his wife to the plaintiff, and proved that they are the same papers referred to in his evidence. (The affidavit as to the truth and bona fides of the consideration expressed in the mortgage, was made by the defendant as the agent of the plaintiff.)

James Revell, on the part of the defendant, testified as follows: Sometime previous to October 8th, 1868, my brother requested me to negotiate a loan for him of $1500.00, giving me full authority to make the best terms I could; I went to Mr. Bannon after having acquainted myself with the character of the liens on the property of my brother, and communicated them to Mr. Bannon; Mr. Bannon would not consent to loan the amount until he had seen the property; Mr. Bannon and I went to the place by appointment and remained all night, walked over and examined the property critically; * * * * considering its advantages, I think the property was worth at that time about $50 or $60 per acre, improved as it then was; Mr. Bannon agreed to lend the money; I am not positive whether on that day Mr. Bannon promised to lend the money--I to apply it; I went to Baltimore and saw Mr. Bannon on the 8th of October, and had a general conversation with him about the loan and arranged the details; I was to prepare the mortgage from Dr. Revell and wife to the plaintiff; thinking the matter could be arranged in ten days, I gave Mr. Bannon my note at ten days for $1440 upon the condition that when the mortgage and note had been executed I was to have my personal note returned to me; I forwarded the mortgage note with the understanding that the mortgage would be prepared, referring to this note; the mortgage was prepared in my office and I identified the note as of October 8th, 1868, and referred to it as a stamped note; I received the $1440; I came home and stated to the gentlemen who were pressing my brother that I would settle as soon as I could prepare a statement.

Owing to some reason which I cannot now recollect, the mortgage was not immediately executed and forwarded to Mr. Bannon; no other liens had accrued in the meantime; I sent the mortgage note a short time after October 8th, and the mortgage afterwards; I called subsequently on Mr. Bannon for the note which I gave him, or perhaps wrote to him previously, and then when I called, he informed me he had given the note to Mr. Warfield; I did not get the note back; I saw Mr. Bannon several times about the matter, but never got the note; Mr. Warfield called to see me; saw me two or three times out of the presence of Mr. Bannon; I think he inquired about Dr. Revell's affairs, before he and Mr. Bannon came together; * * * *

Thomas J. Pitt, being examined on the part of the defendant, testified as follows: In October, 1868, I was the clerk and book-keeper of Mr. Bannon, at his office, in Baltimore, and am so employed now; the plaintiff, was at the office in 1868; I recollect Mr. Bannon telling him he had a party applying to borrow money, and he asked Mr. Warfield if he had any to lend; Mr. Bannon described the property to him; after Mr. Bannon explained to him about the property, he said he might lend it if he thought the property would bear it; if Mr. Bannon thought that in his judgment the property would bear the loan of $1500, then he was to make the loan; it was to be loaned to Dr. Revell; this is about all I remember about it; I have seen the note sued on before, and recollect when it was given; I was present when the $1440 note was delivered to Mr. Warfield, to be held by him until the mortgage and note of Dr. Revell were delivered to him by Mr. Bannon, then this note was to be given up, this is as well as my recollection serves me; I have been present at the office several times when Mr. Warfield made inquiries whether any interest had been collected on Revell's mortgage debt; I recollect on one occasion Mr. Bannon I think asked Mr. Warfield to deliver to him the note, that he had the mortgage note to deliver to him; I don't recollect that Mr. Bannon said anything else; I don't remember what reply was made by Mr. Warfield.

Being cross-examined he said, I remember Mr. Bannon telling Mr. Warfield where the property was located, but don't now recollect the place; I can't say whether I took the note sued on out to Mr. Warfield to Howard County; I got Attrill's note; it was after the conversation about the loan to Dr. Revell, that I went to Warfield's; did not take Attrill's note to Bannon; I don't think I took the note in suit out; I gave him nothing and brought nothing back. * * * *

The plaintiff being examined in rebuttal, testified as follows The loan to Attrill was made 19th September, 1868, this was money that Mr. Hammond had borrowed from Miss Rachel Warfield; it was paid back to Miss Warfield, and after she had received it Mr. Bannon came to my house one night, and talked with her and she agreed she would lend it to Mr. Attrill; the next morning Miss Rachel said she had concluded not to lend the money as it...