Fulton v. Maccracken

• Decision Date: 09 July 1862
• Parties: LYMAN FULTON v. SAMUEL F. MACCRACKEN.
• Court: Maryland Court of Appeals

18 Md. 528

LYMAN FULTON v. SAMUEL F. MACCRACKEN.

Court of Appeals of Maryland.

July 9, 1862

A protest should designate or identify the note to which it refers: this is usually done by putting on it a copy of the note, but if the original note be annexed, and referred to in the body of the protest, that is sufficient.

And where a protest appears without either the note or a copy but there is endorsed on it a memorandum of the maker amount, endorser, and date of protest, corresponding with the note in suit, this is sufficient to admit the protest in evidence.

It is no objection to a notice of protest that the notary's name was printed instead of signed: all that is required is, that the notarial certificate should appear to be the the act of the officer, and he may employ a clerk, or a printing press, to sign his name.

Where a witness, after testifying cautiously and hesitatingly, as to sending notices of protest, said, on cross-examination, he had no doubt he did mail the notices, but could not say he distinctly remembered the precise fact, his evidence may go to the jury.

It is the province of the jury to determine the weight and credibility of evidence, and to pass upon its sufficiency to prove the fact sought to be established.

Testimony of a lawyer, that he brought suit for a certain firm, recovered judgment, collected the money, and paid it over to a party, to whom one of the firm, by letter and assignment, directed him to pay it: is admissible, such facts are not privileged communications from his clients.

Where the defendant's liability depended on the existence of a partnership, and there was evidence on that subject proper for the jury, a prayer, denying the plaintiff's right to recover, based on the theory of principal and agent (of which there was also evidence) and ignoring the partnership, is erroneous.

A prayer, that if the jury find that the note sued on was discounted for the benefit " of the defendants under the firm of Fulton & Linn, and that they received the proceeds" thereof, does not assume the fact of partnership, but leaves to the jury to find the existence of the firm, which they could not do without finding a partnership existed.

Where a note was discounted for the benefit of the defendants endorsers thereof, and they received the proceeds, and the plaintiff was the immediate subsequent endorser, and paid it, and took it up after protest, the plaintiff was an accommodation endorser for the defendants, and, as between them, no notice of dishonor to the defendants was necessary to entitle the plaintiff to recover.

APPEAL from the Superior Court of Baltimore City.

Assumpsit, brought August 27th, 1852, in the Circuit court for Baltimore county, and thence removed, on suggestion of the plaintiff, to the Superior court of Baltimore city for trial, by the appellee against the appellant and John M. Linn, partners trading as Fulton & Linn, endorsers of a promissory note. Linn was returned non est, and Fulton appeared and pleaded non assumpsit, and the case proceeded as against him.

Six exceptions were taken by the defendant to the rulings of the court below (LEE, J.) The facts of the case, as to the making, endorsement, discount and protest of the note, and the first and second exceptions, are fully stated in the opinion of this court.

3 rd Exception: After the court had admitted the protest, and the form of a notice of it as stated in the preceding exceptions, the plaintiff gave some evidence of the existence of a partnership between Fulton and Linn, and how they conducted business, & c., and then offered the deposition of Giraud Foster, the notary who protested the note in New York, in which, after stating the presentment, demand, refusal and protest of the note, on the 11th of October 1849, he says, that on the next day, he put in the post-office in New York, before the closing of the western mail, two notices of the protest of the note for non-payment, and that the holders looked to them for payment, addressed respectively to Sumner Clark, Fulton & Linn, and Samuel F. Maccracken, enclosed in a similar notice to W. Slade, Jr., cashier of the Hocking Valley Bank, Lancaster, Ohio, he being the last endorser, and Lancaster, Ohio, being his place of business, and he was the only endorser whose place of business or residence was known to witness, and that said notices were all sent in one enclosure. The defendant objected to so much of the deposition of this witness, as related to the protest or notices of protest, or the sending thereof in the manner stated, but the court admitted the same, and to this ruling the defendant excepted.

4 th Exception: The plaintiff then offered in evidence the deposition of W. Slade, the cashier of the Hocking Valley Bank, in which he says, the note was discounted at his bank, and " I am quite confident it was discounted for the benefit of Fulton and Linn, whose names appear as endorsers thereon; --I think Mr. Linn presented it at the bank, and attended to the matter himself. I cannot positively state in what manner he received the proceeds, whether in currency or drafts on banks, but he received the proceeds in whatever shape paid. I am quite confident the note was not paid at maturity, and returned to the bank under protest from New York; my impression is, the notices of non-payment, sent by the notary, all came under envelope to me, and were by me, by next mail, forwarded to the endorsers; --my invariable custom was to forward notices to endorsers by the next mail which left Lancaster--I do not remember a single instance in which I failed. The notice to Fulton and Linn, in the present case was, I think, so sent, and my impression would be, was sent to Cincinnatti, where they resided or did business. I was always very careful to leave nothing undone to fix the liability of endorsers. Some time after maturity the note was taken up by the plaintiff, whom I always regarded as accommodation endorser; I believe the note was discounted for the benefit of Fulton and Linn, and that they received the proceeds; that the plaintiff was mere accommodation endorser; that notice of non-payment was sent to Fulton and Linn, the next mail after it came to the bank, and that the plaintiff afterwards took up the note, that the plaintiff took up the note after his liability was fixed by notice of non-payment, which notice came in same envelope with other notices, and was, as I think, served on the plaintiff by myself--I was not intimately acquainted with him." In answer to a cross-interrogatory, whether he had any distinct and positive recollection that he mailed any notices of protest to the endorsers of said note, in the manner and at the time mentioned in his answers to the direct interrogatories? the witness stated, " that while he had no doubt that he did mail such notices, he could not say that he distinctly remembered the precise fact."

The defendant objected to the admissibility of so much of the deposition of this witness as contained statements of his impressions, or of his invariable custom, or of any matter of fact which he did not distinctly remember, but stated from impressions or customs only. The court admitted the whole, and to this ruling the defendant excepted.

5 th Exception: The plaintiff then, after other evidence, offered the deposition of Richard M. Corwine, Esq., a lawyer of Cincinnatti, residing there in 1849, and of the law firm of Spencer and Corwine, who stated that he had acted as attorney for Lynn, and had brought a suit for Fulton and Linn, use of Fulton, vs. J. R. Betts, et al., in the District Court of Ohio, for Hamilton county; that his law firm received one letter from Fulton on that subject; that the claim was assigned to Maccracken, but witness does not know how and when it was assigned; that the suit has been finally decided, the money collected and paid over to the proper party, in accordance with the assignment of Fulton to Maccracken; that the assignment purported to come from Fulton, and came to witness' firm in such a way as left no room to doubt it did come from him; his impression was, his firm was notified of it by V. Worthington, who, as witness understood, represented Fulton in some way in his matters in Cincinnatti, but he is sure his firm were notified of the assignment in a letter which they received from Baltimore, purporting to come from Fulton, and the assignment contracted for the payment of the money.

The defendant objected to the admissibility of the whole deposition of this witness, he being the attorney for the defendant, but the court admitted it, and to this ruling the defendant excepted.

6 th Exception: The plaintiff then asked two instructions to the jury:--

1st. That if they believe from the evidence in the cause, that the note of Wm. Bradley for $2000, given in evidence, was discounted for the use and benefit of the defendants under the firm name of Fulton and Linn, and that they received the proceeds of it, and that the plaintiff was the immediate subsequent endorser thereon, and has paid the same, and is now the owner thereof, that then the plaintiff is an accommodation endorser upon said note for the benefit of the defendants, and is entitled to recover in this action without proving that notice of the dishonor of said note was given to the defendants.

2nd. That if they shall find from the evidence in the cause, that the plaintiff was an accommodation endorser for benefit of defendants, upon the note given in evidence, and that the defendants received the proceeds of the same and were immediate prior endorsers thereon, then the plaintiff is entitled to recover in this action without proving that notice of protest of said note was given to the defendants if they shall find that the...