Chaffe v. Memphis, Carthage & Northwestern R.R. Co.

• Decision Date: 31 October 1876
• Parties: F. W. CHAFFE, Respondent, v. THE MEMPHIS, CARTHAGE & NORTHWESTERN R. R. CO., et al., Appellants.
• Court: Missouri Supreme Court

64 Mo. 193

F. W. CHAFFE, Respondent,

v.THE MEMPHIS, CARTHAGE & NORTHWESTERN R. R. CO., et al., Appellants.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jasper Court of Common Pleas.Walser & Cunningham, for Appellants, cited: Cahn vs. Dutton, 60 Mo. 297; Mammon vs. Hartman, 51 Mo. 168; Seymour vs. Farrell, 51 Mo. 95; Kuntz vs. Temple, 48 Mo. 77; Western Boatmen's Benevolent Ass'n, vs. George C. Wolff, 45 Mo. 104; Sanderson vs. Reinstadler, 31 Mo. 483; Gilchrist vs. Downell, 53 Mo. 591; Edw. Bills & Notes, 219; State vs. Vaughn, 36 Mo. 95; Gerhardt vs. Boatmen's Savings Institution, 38 Mo. 62; Downzelot vs. Rawlings, 58 Mo. 75; Gerhke vs. Jod, 59 Mo. 522; Moore vs. State Bank, 6 Mo. 379; Edw. Bills & Notes, 229, 273; Hayward vs. National Insurance Co., 52 Mo. 181; Mechanic's Bank vs. Shaumburg, 38 Mo. 228; Sto. Agency, § 140.

J. P. Ellis, for Respondent, cited: Powell vs. Thomas, 7 Mo. 440, down to the present time; Lewis vs. Harvey, 18 Mo. 74; Schneider vs. Schiffman, 20 Mo. 571; Seymour vs. Farrell, 51 Mo. 95; Western B. B. Ass'n vs. Wolff, 45 Mo. 105; Mammon vs. Hartman, 51 Mo. 108 ;Kuntz vs. Temple et al., 48 Mo. 71; Cahn vs. Dutton, 60 Mo. 296; Hardin vs. Phelps, 51 Mo. 332; Emmerson vs. Sturgeon, 18 Mo. 170; Boland vs. Mo. R. R. Co., 36 Mo. 484; Callahan vs. Warne, 40 Mo. 131.

HOUGH, Judge, delivered the opinion of the court.

This was an action against the Memphis, Carthage and Northwestern Railroad Co., L. P. Cunningham, George P. Cunningham, T. Reagan and E. H. Brown, as makers of a promissory note for $6,005.00 dated March 14, 1873, and payable one year after date to the order of W. L. Burlingame.

There was a verdict and judgment for the plaintiff, from which L. P. Cunningham, George P. Cunningham and T. L. Reagan have appealed to this court.

The names of E. H. Brown and the appellants were not subscribed to the note, but were written on the back thereof before its delivery to the payee, and below their signatures was the following endorsements: “Pay to the order of F. W. Chaffee, W. L. Burlingame.”

The appellants were prima facie liable as makers. (Powell vs. Thomas, 7. Mo. 440; Lewis vs. Harvey, 18 Mo. 74; Schneider vs. Schiffman, 20 Mo. 571; Western Benevolent Boatman Ass'n vs. Wolff, 44 Mo. 105; Kuntz vs. Temple, 48 Mo. 71; Seymour vs. Farrell, 51 Mo. 95; Mammon vs. Hartman, 51 Mo. 168; Cahn vs. Dutton, 60 Mo. 297.)

The plaintiff was the holder of said note for value before maturity. It was agreed between the payee, W. L. Burlingame, and the appellants, that the latter were not to be held liable on said note otherwise than as accommodation endorsers.

The plaintiff was not bound by this agreement unless he had notice thereof, before or at the time of the transfer of the note to him. (Schneider vs. Schiffman, 20 Mo. 571.)

For the purpose of proving at the trial that the plaintiff had notice of this agreement, when he purchased said note, certain testimony was offered by the appellants which was objected to by the plaintiff and was excluded by the court.

The plaintiff contends that the action of the trial court, in excluding the testimony, cannot be reviewed by this court, inasmuch as the grounds of his objection thereto do not appear in the record. This position is plainly untenable.

When a party objects to the introduction of testimony, and the court overrules such objection and admits the testimony, in order that the action of the court in overruling the objection may be reviewed in this court, it is generally necessary that the specific grounds of objection shall be stated in the record. But where testimony is excluded on a general objection, the party objecting cannot be heard to say that the ruling of the court cannot be reviewed because his objections were not specific. In such cases, if this court should be of opinion that rejected testimony was competent for any purpose, it will revise the action of the lower court.

It is evident, however, in the present case, that the testimony offered was rejected because in the judgment of the Common Pleas Court it did not conduce to show that the plaintiff had notice of the agreement between Burlingame and the appellants, when he purchased the note sued on; for the court expressly declared, where evidence of the agreement was admitted, that such evidence would be excluded by instruction, unless it was supplemented by testimony tending to show that the plaintiff had notice of such agreement.

The testimony offered by defendants to charge the plaintiff with notice, consisted of the original petition filed by plaintiff in the present action and the notary's certificate of protest.

Neither of these papers, in our opinion, tend, even in the remotest degree, to show that when plaintiff bought the note in suit he had any notice whatever that the appellants were to be held only as accommodation indorsers, or that he ever sought to hold them liable in any other...