McCosker v. Banks
| Decision Date | 19 November 1896 |
| Citation | 35 A. 935,84 Md. 292 |
| Parties | MCCOSKER ET AL. v. BANKS ET UX. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Prince George county.
Action by David McCosker and George J. Malloy, trading as McCosker & Malloy, against John T. C. Banks and wife, to recover on a note. From a judgment for defendants, plaintiffs appeal. Affirmed.
Argued before McSHERRY, C.J., and BRYAN, BOYD, and ROBERTS, JJ.
R. Ford Combs and C. A. M. Wells, for appellants.
F Snowden Hill and James C. Rogers, for appellees.
This case is before us for the second time. The former appeal is reported in 82 Md. 518, 34 A. 539. As presented now, the record contains six bills of exception. One of these relates to the admissibility of evidence, and the others to rulings of the circuit court for Prince George county in rejecting five prayers presented by the plaintiffs for instructions to the jury. The prayers having all been submitted at the same time, and forming a series of consecutive propositions, the ruling of the court upon them was a single act, and not five separate and distinct decisions; and, consequently, one exception, if properly taken, and executed, would have been sufficient to embrace the whole. Ellicott v. Martin, 6 Md. 517. The practice of embodying each prayer in a separate exception, though it prevailed half a century ago has long since been abandoned as one that served no useful purpose. The action is in assumpsit. The plaintiffs, who are the appellants, sued in their firm name and style as partners. They declared on a promissory note made by the defendants, the appellees, and payable to one P. O'Brien or order, and by him indorsed to them; and they added the common money counts. The defendants pleaded that they never promised as alleged; that the note sued on was procured by fraud, of which the plaintiffs had knowledge when it was indorsed to them; and the defendants specially denied that there was a partnership existing between the plaintiffs. Upon the issues joined on these pleas the case proceeded to trial before a jury. The verdict and judgment were for the defendants, and the plaintiffs have appealed.
The plaintiffs offered evidence tending to prove their co-partnership, the signatures to the note sued on, its nonpayment, and the indorsement of it by O'Brien, and there rested. The defendants then gave testimony designed to show that the note was procured by the fraud of O'Brien the payee; and in rebuttal, Malloy, one of the plaintiffs was placed upon the stand, and testified that he had no knowledge of any fraud practiced by O'Brien in the obtention of the note. He was then asked whether or not the firm of McCosker & Malloy were aware of any fraud practiced by O'Brien in the obtention of the note. To the admissibility of this question the defendants objected, but the court permitted the witness to answer, reserving the right to rule the answer out. The witness replied that the firm of McCosker & Malloy were not aware of any fraud in the obtention of the note. Thereupon the defendants asked the court to strike out the answer so given, and this the court did, and the plaintiffs excepted. This ruling is the one complained of in the first bill of exceptions. It will be observed that the question sought to elicit from the witness an answer as to whether the firm of McCosker & Malloy had knowledge of the alleged fraud on the part of O'Brien in the obtention of the note, and that the answer actually given and subsequently stricken out was that the firm had no such knowledge. The word "firm" is equivalent to "partnership," and signifies the name under which any house of trade is established or conducts business; but a firm is not a being or entity distinct from the individuals who compose it. Knowledge or ignorance of a firm must consequently be the knowledge or the ignorance of the persons who constitute the firm. Stewart v. Katz, 30 Md. 344. Now, while notice to one member of a firm is notice to all the members, precisely as notice to an agent is notice to his principal, it by no means follows that the ignorance of one member, or his want of notice, is the ignorance or want of notice of the others. Ignorance of a particular fact--that is, want of knowledge of that fact--consists in this: that the mind, though sound, and capable of receiving an impression, has never acted upon that subject, because that subject has never been brought to the notice of the perceptive faculties. Ignorance is a negative condition of the mind, and that condition is communicable to others only by some act, or by some declaration. Whether an individual is ignorant of a particular fact depends in no measure upon the want of knowledge of some one else as to the same fact, however closely allied the latter may be to the former; but the existence of such ignorance must, as to each individual, be sought by other methods consistent with the settled rules of evidence. Hence, when it becomes incumbent upon a plaintiff to show that he was ignorant of imputed fraud affecting the validity of a promissory note which he has acquired by indorsement, he obviously cannot discharge the burden resting upon him by showing through other persons his own declarations, for that would be but hearsay. As the state of his own mind--its want of knowledge of the alleged fraud--is an essential element of his case, he must prove that want of knowledge by legally competent...
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