Line v. Line

• Decision Date: 15 January 1913
• Citation: 86 A. 1032,119 Md. 403
• Parties: LINE v. LINE.
• Court: Maryland Court of Appeals

86 A. 1032

119 Md. 403

LINE v. LINE.

Court of Appeals of Maryland

January 15, 1913

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.

"To be officially reported."

Action by Fannie M. Line against Daniel W. Line, administrator of Martin Luther Line, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Walter V. Spessard and Frank G. Wagaman, both of Hagerstown, for appellant. W. J. Witzenbacher, of Hagerstown, for appellee.

PATTISON J.

The action in this case is brought upon an alleged bond of one Martin Luther Line. The declaration alleges that Martin Luther Line "in his lifetime, by his single bill or writing obligatory, dated the first day of November, in the year nineteen hundred and three, promised to pay to the plaintiff (appellee) six months after date the sum of one thousand dollars with interest thereon at 5 per cent.," etc. To this declaration the defendant filed seven pleas. Of these we need give only the fourth, fifth, and sixth, as the others are not involved in the questions before us. The fourth plea alleges that the bill or writing obligatory is not the bill or writing obligatory of the decedent. The fifth plea charges that the decedent, at the time the writing or bill obligatory is said to have been executed, was of unsound mind, memory, and understanding and was not capable of making a valid deed or contract. And by the sixth plea it is alleged that upon an inquisition de lunatico inquirendo the decedent was found to be of an unsound mind on the 9th day of April 1904, and that such unsoundness of mind had existed for 17 years prior to the 9th day of April, 1904. The plaintiff traversed the fourth and fifth pleas and replied to the sixth plea, saying that by the inquisition therein mentioned it was declared that the decedent, at the time of said inquisition and for the said 17 years prior thereto, enjoyed lucid intervals. The defendant joined issue on the first replication and demurred to the second replication, as we here number them. Upon an inspection of the pleadings, made necessary by the filing of the demurrer, the court found that the first error in the pleadings was in the sixth plea, which is declared to be bad. The case was then heard by a jury upon the remaining issues, resulting in a verdict for the plaintiff. It is from a judgment entered thereon that this appeal is taken.

In the progress of the trial seven exceptions were noted, six to the admission and rejection of testimony and one to the rulings of the court upon the prayers. Of these exceptions the appellant waived the second and third, and does not refer at all to the fourth and sixth, at least in his brief, and we do not recall that he referred to them in his oral argument. As to these rulings of the court, however, we find no error.

The first exception is to the admission in evidence of the bond, which is as follows: "$1,000.00. Keedysville, Nov. 1, 1903. Six months after date I promise to pay Fannie May Line the sum of one thousand dollars, for value received, with interest at five per cent. as witness my hand and seal. Martin Luther Line. [Seal.]" Its admission was objected to by the defendant because, as he claimed, there "was no evidence of the sealing of the bill." To establish its execution and delivery, the plaintiff placed upon the stand Mrs. Clellie Thomas and Earl Thomas, sister and nephew of the plaintiff as well as of the defendant, and Martin Luther Line, the first of whom testified that she was acquainted with the handwriting of Martin Luther Line, and that the signature to the bond was in his handwriting. The other testified as to a conversation with Martin Luther Line in December following the alleged execution of the bond in November, 1903, in which conversation he stated that his uncle told him that: "Sister Sarah had given Aunt Fannie $1,000, and be had done the same; that she was good to him and took care of him." In addition to these witnesses the plaintiff also produced one Zula Thomas, a niece of the plaintiff, defendant, and Martin Luther Line, who testified she was present at the time of the alleged execution of the bond by her uncle. She stated: That she had lived with her Aunt Fannie and Uncle Luther for several years prior to the 1st day of November, 1903 (the date of the alleged execution of the bond), and was living with them at that time. That she was then 13 years old. That the bond was written by her aunt at the request of her uncle, who said at the time of its execution that he wanted to give her $1,000 because she had been very good to him. That she cared for and stayed with him when he was feeling bad, and he thought she ought to have $1,000 extra. He also said that Aunt Sallie had given her $1,000, and he wanted to give her the same. That she saw her uncle, after reading the bond, sign it and give it to the plaintiff. Upon cross-examination she testified that the seal was upon the paper writing "when signed," and then upon being asked, "Did you see it put there?" she replied, "I saw it put there right after uncle had signed his name." This last answer would indicate that the seal or scroll was placed upon the note "right" or immediately after it was signed by the decedent, but this is not inconsistent with the answer, or evident meaning of the answer of the witness, in saying it was there when signed; that is, it was either placed there before the bond was actually signed, or immediately after it was signed; that it was there when the bond was signed or executed, and before the delivery of it to the appellee. If the scroll was there when the decedent signed the bond, although placed there by another, it was nevertheless his seal, as much so as if he himself had placed it there. Keedy, Adm'r, v. Moats, 72 Md. 330, 19 A. 965. As to the above stated objection urged against the admissibility of the bond in evidence, it was, in our opinion, admissible upon the testimony given above.

But it is also contended in this court, although not contended in the court below, that the bond should not have been admitted in evidence for the further reason that it was executed on Sunday, and therefore was invalid and not enforceable against the defendant. This fact, however, was not pleaded to the declaration, nor was there any evidence offered under his plea of non est factum, if such evidence could have been offered thereunder, that the paper writing was executed on Sunday, nor was the attention of the trial court in any way called to the fact that November 1, 1903, the date of the alleged execution of the paper writing, fell on Sunday nevertheless it is contended by the defendant that the court should have taken notice of this alleged fact. We are asked in this court, upon appeal, to consider this fact and determine whether or not the bond should have been admitted in evidence, although no evidence was offered in support of such fact and no suggestion made of it in the lower court and no notice taken of it by that court. There are certain facts of which courts may take notice and these facts need not be proven. It is said in 16 Cyc. 856, that: "The most prominent, perhaps, among the facts of science judicially known to the courts are those, so to speak, of the almanac. Courts take judicial notice of the computation of time, as, for example, the coincidence of days of the week with days of the month, or days of the month with days of the week in that month." Our predecessors have also held: "It is the duty of the court to notice days of the week upon which particular days of the month fall." P. W. & B. R. R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415; Kilgour v. Miles, 6 Gill & J. 268; Sasscer v. Farmers' Bank, 4 Md. 409. In all these cases, however, the attention of the lower court was in some manner called to those facts. If called upon to take judicial notice of a fact of which he should take notice, or if in the trial of a case other facts therein suggest to him the probable exercise of such fact, the judge may, in order to acquire information in respect thereto or to...