Herrman v. Combs

• Citation: 85 A. 1044,119 Md. 41
• Parties: HERRMAN et al. v. COMBS.
• Decision Date: 05 December 1912
• Court: Court of Appeals of Maryland

85 A. 1044

119 Md. 41

HERRMAN et al. v. COMBS.

Court of Appeals of Maryland

December 5, 1912

Appeal from Circuit Court, Baltimore County; W. H. Harlan, Judge.

Action by Eliza Combs against J. Henry Herrman and another. From judgment for plaintiff, defendants appeal. Reversed, and new trial awarded. Defendants excepted to the granting of plaintiff's first prayer and to the overruling of defendants' first prayer, which prayers are as follows:

"Plaintiff's First Prayer. The plaintiff prays the court to instruct the jury that if they should find from the evidence that J Henry Herrman and Caroline Herrman signed and delivered the note offered in evidence, and should further find that either at the time of the delivery of said note, or any time prior thereto, the defendants, or either of them received from the plaintiff the $2,000 represented by said note, then their verdict should be for the plaintiff. (Granted.)"

"Defendants' First Prayer. The defendants pray the court to instruct the jury that there is no evidence legally sufficient in this cause to entitle the plaintiff to recover against these defendants, and therefore their verdict must be in favor of the defendants. (Denied.)"

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS, PATTISON, and STOCKBRIDGE, JJ.

Edward L. Ward, of Baltimore, for appellants. Robert F. Stanton and Z. Howard Isaac, both of Baltimore, for appellee.

PEARCE J.

This is an action brought by the appellee in the circuit court for Baltimore county upon the following note: "$2,000. Gardenville, February 1, 1908. Two years after date we promise to pay to the order of Eliza Combs two thousand dollars ...... at ...... value received. J. Henry Herrman. Caroline Herrman. No. ...... Due with interest." Eighteen exceptions were taken to the rulings upon the evidence and two to the rulings upon the prayers; the first exception being to the rejection of a prayer to take the case from the jury at the close of the plaintiff's evidence, and the twentieth to the rulings on the prayers at the close of the case. The narr. contained the common counts for money payable and a special count upon the note, and the pleas were the general issue. There was a verdict for plaintiff and judgment thereon for $2,060, from which the defendants have appealed.

At the trial, there was an agreement of counsel that Mr. Stanton, counsel for plaintiff, had in his possession the original note filed with the narr., which had been withdrawn under an order of court, and this note was offered in evidence and read to the jury, and the plaintiff rested. Thereupon the defendant submitted a prayer that there was no evidence legally sufficient to entitle the plaintiff to recover, which was rejected, and this constitutes the first exception; but as this prayer was renewed at the close of the case, after defendants had proceeded with testimony in their own behalf, that exception was thereby waived.

J. Henry Herrman, being sworn, testified that Caroline Herrman was his wife, and before their marriage lived with her uncle John Combs, the husband of the plaintiff, but now deceased in January, 1909. He was then asked, "Will you tell us whether or not you, or your wife, or both of you, borrowed any money from Mr. Combs, and, if so, when?" to which the plaintiff objected, and the objection was sustained, and this is the second exception. This question was asked without any proffer of testimony to show how that inquiry could be relevant or material in a suit for money alleged to be due Eliza Combs, and at that stage of the case the ruling was correct.

The witness then further testified that, at the time of the death of John Combs, neither he nor his wife owed anything to Eliza Combs, and he was then asked "to explain to the jury why that note was given, and when, and all the circumstances connected with the giving of it," counsel for defendants stating to the court "that they expected to prove that about 1887, John Combs, plaintiff's husband, loaned the defendants $2,500; that in 1895 they paid him $500 on account, leaving due $2,000; that in 1905 John Combs gave the female defendant a paper releasing her from the payment of this balance; that, after John Combs' death, the plaintiff, who was his executrix, demanded from the defendants the money borrowed from her husband, and, when told by them that Mrs. Herrman had a release which had been mislaid, she suggested that they give her a note for the $2,000, as though the money was due her individually, and that if the lost receipt was found the note could be destroyed and they need not pay the $2,000; that this suggestion was accepted, and the note in suit was given accordingly." This question and proffer was objected to, and the court refused to permit the question to be answered. This constitutes the third exception.

This was in effect an offer to prove that there was no consideration whatever for the note in suit, and under sections 47 and 77 of article 13 of the Code of 1912, total or partial failure of consideration is a defense against any person not a holder in due course. We think it is quite clear, in view of the proffer made in connection with the question propounded, that there was error in this ruling. It has been held in numerous cases in this court that, in suits between the payee and maker of a note, the parties may show all the facts and circumstances surrounding its execution and relating to the existence of a consideration, although, where a consideration is shown, the legal import and operation of the note, as such, cannot be controverted by parol testimony. Cline v. Miller, 8 Md. 275; Ingersoll v. Martin, 58 Md. 72, 42 Am. Rep. 322; Bradford v. Harris, 77 Md. 154, 26 A. 186; Spies v. Rosenstock, 87 Md. 16, 39 A. 268; Fisher v. Diehl, 94 Md. 112, 50 A. 432; Burke v. Smith, 111 Md. 627, 75 A. 114. The language of the court in Spies v. Rosenstock, supra, may be cited in illustration of the principle declared in all. It was there said: "The defendant was permitted to state the circumstances under which the note was given. It is clear there was no error in this ruling, for it is settled that as between two immediate parties, as here, between the maker and payee, while the note itself is prima facie evidence of the consideration, the question of consideration is always open."

The fourth exception was to the refusal to permit this question, "Now, Mr. Herrman, tell us when this note was signed."

The fifth exception, after this witness, without objection, had said the note was executed at his home, was to the refusal to permit this question: "You say there was no consideration for the note. Tell us how you came to give it."

The sixth exception, after the witness had again testified there was no consideration for this note, was to the refusal to permit him to say, "Why, then, was the note given?"

After Mrs. Herrman had testified that she remembered the day when the note was signed in the dining room of her home, and had stated who was present at that time, and that she neither then nor...