McSherry v. Brooks

• Decision Date: 01 March 1877
• Citation: 46 Md. 103
• Parties: WILLIAM A. MCSHERRY v. WALTER B. BROOKS and RANDOLPH BARTON, Assignees in Bankruptcy of KIRKLAND, CHASE & COMPANY.
• Court: Maryland Court of Appeals

46 Md. 103

WILLIAM A. MCSHERRY v. WALTER B. BROOKS and RANDOLPH BARTON, Assignees in Bankruptcy of KIRKLAND, CHASE & COMPANY.

Court of Appeals of Maryland

March 1, 1877

APPEAL from the Baltimore City Court.

The case is stated in the opinion of the Court.

Exception.--At the trial the plaintiffs offered the following prayer:

The plaintiffs asked the Court to instruct the jury, that if they find that the defendant executed the five promissory notes sued on, and delivered them to Shurtz, the payee, and that said notes were endorsed for value by said Shurtz to the commercial firm of Kirkland, Chase & Co., before its failure and that the plaintiffs are the assignees in bankruptcy of said firm, appointed after its failure, and that said notes passed to said plaintiffs, as such assignees, and that the defendant made to the plaintiffs, then being holders of said notes, the payments mentioned in the agreements, dated 16th December, 1872, and that said agreements were signed by said defendant, and endorsed on said notes respectively, and that in consequence thereof, the defendant received the indulgence testified to by the witness Barton; and that said notes, when they were passed by the defendant to said Shurtz, as aforesaid, were so passed to secure to him the payment of the amount found to be due from the defendant to the firm of W A. McSherry & Co., under the agreement dated January 1, 1870 entered into upon the dissolution of said firm, given in evidence, then the plaintiffs are entitled to recover in this suit the amount of said notes and interest; unless the jury shall find that said Shurtz has collected, or could have collected a larger sum from the bad and doubtful debts referred to in said agreement, than the amount which has proved to be bad of the debts which by said agreement were taken by him as good; and if the jury should find that said Shurtz collected or could have collected a larger sum from said bad and doubtful debts, than the amount which has proved to be bad, of the debts which he took as good, then the plaintiffs are entitled to recover the amount of said notes and interest, after crediting to the defendant thereon one-third of the amount of such larger sum or excess so collected by said Shurtz, with interest on such excess; and if the jury should find that no part of the debts which said Shurtz, by said agreement took as good, has proved to be bad, then the defendant is entitled to a credit for one-third of all the debts taken as bad or doubtful, which said Shurtz has collected or could have collected, with interest thereon.

And the defendant the twelve following prayers:

1. The defendant prays the Court to instruct the jury, that if they believe from the evidence, that Mr. Shurtz and Mr. McSherry were co-partners, and dissolved and accounted together, at or about the date of the cause of action in this case, and that said causes of action represented the balance then in favor of Mr. Shurtz, and that the said causes of action were past due at the time of their execution and delivery to Mr. Shurtz, if the jury shall find that said causes of action were delivered to Mr. Shurtz, and that the aforesaid accounting between Mr. Shurtz and Mr. McSherry, was not a final accounting, but that they were outstanding claims due to and by the said Shurtz and McSherry, and that the said Shurtz undertook and agreed that the said McSherry should be debited on account of future payments by the said Shurtz, and should be credited for payments to the said Shurtz of said claims so due by and to the said Shurtz and McSherry, or that it was intended that another account should be had between the said parties furnished by said Shurtz, then the said causes of action are memoranda of indebtedness then existing, to be changed by subsequent payments and disbursements, and not promissory notes; that a final accounting by Mr. Shurtz to Mr. McSherry, was a condition precedent to the bringing of a suit by Shurtz against McSherry, and that there is no evidence of an account between the said Shurtz and the said McSherry, and their verdict must be for the defendant.

2. If the jury shall find from the evidence, that Mr. Shurtz promised and agreed with McSherry, that Mr. Shurtz would keep the said promissory notes in his possession, and not pass them away, and Mr. McSherry delivered said notes to Mr. Shurtz, upon this agreement and understanding, and if they shall further find that said Mr. Shurtz passed the notes away, and that said notes were past due at the time of their being so passed away, then their verdict must be for the defendant in this action.

3. That the plaintiffs cannot recover upon the first five counts under the pleadings and evidence in this case, because they have shown to the jury that their causes of action do not represent the true state of accounts between Mr. Shurtz and Mr. McSherry, and they cannot recover on the sixth count, because they have not shown any accounts stated between the plaintiffs or Mr. Shurtz with the defendant.

4. That even if the jury should find that there is and was an outstanding indebtedness between McSherry and Shurtz, yet they cannot find for the plaintiffs, because there is no sufficient assignment by Shurtz, of any such outstanding indebtedness to the plaintiffs in this case, and Mr. Shurtz is not now in a condition to make such assignment, and the verdict must be for the defendant.

5. That in making up their verdict, the jury must exclude all evidence pertaining to the state of accounts between Shurtz and McSherry at the time of the dissolution of the co-partnership or afterwards, whether they find the amount due by McSherry to Shurtz greater or less than the face of the notes, if the jury believe that the notes were given by McSherry to Shurtz, as memoranda of indebtedness, upon condition that the said notes were to remain in Shurtz's safe and possession, and he would not pass them away, and that a final account should be stated between them at some future time; and if they find that such an understanding or agreement existed, to wit: That Shurtz would keep the said notes in his possession and not pass them away, and would render a final account to McSherry, then such an agreement is a condition precedent to the bringing of a suit by Shurtz against McSherry, and if they find that the said notes passed to the plaintiffs insolvents, after maturity, then the plaintiffs are affected with notice of said agreement and understanding, and occupy before this jury the position of Mr. Shurtz, and are not entitled to recover unless they have satisfied the jury that said precedent condition has been performed by said Shurtz.

6. That before the plaintiffs can recover, if the jury believe that Mr. Shurtz undertook to pay the partnership debts of Wm. A. McSherry & Co., the plaintiffs must produce a release in full to said Wm. A. McSherry & Co., of the creditors of that firm, releasing Wm. A. McSherry from his liability as a member of said firm, and that the mere assertion of Mr. Shurtz in this case, that he paid the debts of the partnership of W. A. McSherry & Co., is not sufficient evidence in the law, of a payment by him of said debts, though they should find that McSherry had not been hitherto called upon to pay said debts.

7. That if the jury believe from the evidence that the defendant paid to the plaintiffs the sum of $5 on each of said notes, the causes of action in this case, "to revive" the same, as is set forth on the back of said notes offered in evidence by plaintiffs, and that said defendant promised to pay said notes, and that at the time of said payment and promise, said notes were past due and in the possession of the plaintiffs; that such payment and promise do not preclude the defendant from setting up such defences as he had before said payment and promise, except the Statute of Limitations, which said defendant has not pleaded in this case, nor do such payment and promise alter the character and nature of said notes as originally impressed upon them at the time of their execution, nor preclude the defendant from showing all the transactions and circumstances attendant upon the execution of said notes, which attendant transactions and circumstances are in the law called the res gestæ.

8. That if the jury believe from the evidence that Mr. McSherry executed the notes, the causes of action in this case, and passed them to Mr. Shurtz, past due on their face, and that the said notes were for an antecedent indebtedness, and that said notes were executed and delivered with the understanding and agreement on the part of Mr. Shurtz that he would not pass them away but keep them himself, then the execution and delivery of said notes by McSherry for such antecedent debt, was a good and valid consideration for said promise and agreement on the part of Mr. Shurtz, said agreement and undertaking were a part of said notes, the attempt by Mr. Shurtz to pass said notes after maturity to the plaintiffs insolvents was a breach of his said undertaking and agreement, said plaintiffs insolvents and said plaintiffs were affected with notice of said undertaking on the part of said Shurtz, and the said plaintiffs have no standing in this Court on the said notes, and the verdict of the jury on the first five counts in the plaintiffs' narr. must be for the defendant.

9. If the jury shall find from the evidence that the defendant executed the notes offered in evidence and delivered them to Mr. Shurtz, when they were overdue on their face, and that Mr. Shurtz was then a partner of the defendant, and that at the time of the execution and delivery of the said notes, it was agreed between the said defendant and Mr. Shurtz that the said notes did not represent the indebtedness between them but that said...