Nininger v. Knox

• Decision Date: 01 January 1863
• Citation: 8 Minn. 110
• Parties: JOHN NININGER vs. J. JAY KNOX et al.
• Court: Minnesota Supreme Court

8 Minn. 110

JOHN NININGER vs. J. JAY KNOX et al.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey County.

The plaintiff left with defendants, who were bankers, for collection, a note made by one Joice, and indorsed by S. S. Eaton. There were two S. S. Eatons, and upon the note being dishonored, defendants caused the notice of its dishonor to be served on the wrong one, so that the indorser was discharged. Plaintiff brought the action to recover damages, alleging negligence of defendants, insolvency of the maker, and solvency of the indorser, and had a verdict and judgment below.

Points and authorities for appellants: —

1. The learned court below erred in admitting the evidence of J. A. W. Jones and John Nininger, as to the conversation or instructions of the plaintiff, in relation to the evidence of the indorser of the note in question, the same being wholly immaterial and incompetent.

2. The learned court erred in overruling the following questions put to the witness, S. S. Eaton, on cross-examination by the defendants: "At the time of the maturity of the note, at any time thereafter and before this suit was brought, had you the means to pay it supposing you had been fixed as an indorser?" Because the question related to the question of the solvency of the witness, which he had been called by the plaintiff to prove.

3. The court erred in overruling the following question put to said Eaton, on cross-examination, by defendants: "If you had been holden on this indorsement, would you have gone on with this mill?" — because the evidence was legitimate upon the question of damages, this mill being the principal property of the witness.

4. The court erred in admitting evidence of reputation to prove the insolvency of Joice, the maker of the note. This was hearsay, and not within the exceptions admitting hearsay evidence.

5. The court erred in ordering the jury to reconsider their sealed verdict, after a separation, and without the said sealed verdict being first disclosed. 2 G. & W. New Trials, 550; 8 Ohio, 405.

6. The newly discovered evidence shown by the affidavits, was sufficient to entitle the defendants to a new trial. This was the evidence of George L. Seager, who was present and heard the conversation between Jones and Knox. This was not evidence of the same kind as the evidence of Knox, the other witness of defendants, for Knox was a party; it was not cumulative within the restriction. This evidence was entitled to be weighed with the whole case. 3 G. & W. New Trials, 1046-7, etc., 1063; 1 G. & W. New Trials, 466 to 469; 1 Sumner, 482; 1 Johns. Cas. 402; 4 Wend. 579; 6 Pick. 114, 417; 24 Pick. 246; 3 G. & W. New Trials, 1104-5; 7 Dana, 329.

Points and authorities for respondent: —

1. If the testimony of Jones and Nininger was competent for any purpose, we may show it here; and it is not material on what ground it was received. A right decision for a wrong reason is never reversed; it is not error. But when testimony is excluded, a party is bound by his offer; not, however, where it is received. 5 Minn. [444]; 1 Hill, 336.

2. This evidence was competent for the following reasons (a.) The defendant tendered the issue as to whether the plaintiff gave the notice of the indorser's residence, and the evidence was within that issue. The objection to the evidence was, then, in effect, an objection to the materiality of one of defendants' own defenses. See Answer and Reply; 1 Johns. 509. (b.) This court decided with two reiterations, in the case of Borup v. Nininger, that under the peculiar circumstances, the plaintiff was bound to notify the banker of the indorser's residence. The plaintiff did notify him, and the only way he could show it was, by showing all the facts, viz.: that Jones gave the information as his (plaintiff's) agent, which involved not only proof of the fact of notice by Jones, but also of the authority whereby he gave it, and this required that the conversation should appear in evidence. 5 Minn. [523]. Had it been omitted, defendants would then have said the plaintiff did not give the notice, and he was also negligent. (c.) The only way the plaintiff could show that he left the note with the defendants, for collection, etc., and the only way by which he could show a relation of contract between himself and the defendants, was by proving that he employed Jones as his special agent to deliver the note and give the notice, and that in pursuance of such employment and authority, Jones did deliver the note and give the notice.

3. Defendants' third and fourth points are not well taken. In both cases the defendant was not cross-examining, and was seeking for the conclusion of the witness, upon a state of facts before the jury, though it was not a case for experts. The second was an attempt to introduce a speculative opinion upon what the witness would have done under a contingency which never happened. It was calculated to draw away the minds of the jury from the merits of the cause. 1 Greenl. Ev. § 441; 2 Stark. 258.

4. The issue on Joice's insolvency was collateral, being only material on the question of damages, — a matter in mitigation of damages, — since the plaintiff would have a right of action against the defendant for his negligence, whether he could make the money of Joice or not; he lost one security. Insolvency was a negative fact, and from the form of the issue on the pleadings, plaintiff had only to make a prima facie case. Joice's reputation was proved in the correct way. The evidence received was competent for that purpose, and reputation, certainly, "throws some light on the issue." When one fact usually accompanies another, proof of the other raises a presumption of the former. It would be almost impossible that a man should be reputed "notoriously insolvent among his neighbors," unless he was so in fact. Reputation is proper evidence of official character, 9 Wend. 17; of marriage, 5 Day, 290, 293; 12 Moore, 500; 4 Bing. S. C. 266; of chastity, of ownership, of market value, etc., and for the same reason. They are facts calculated to impress themselves on the community where they exist; as, the character of a bawdy house, etc. The proof was approved and discussed on writ of error, in State v. Cochran, 2 Dev. 63; 2 Cow. & Hill Notes, 702.

5. The affidavits of Knox and Seager are insufficient. 5 Minn. [171]; 2 Denio, 109; 5 Wend. 114; 10 Wend. 292; 18 Johns. 489; 7 Mass. 207.

Horn, Lund & Galusha, and M. Sherburne, for appellants.

Brisbin & Warner, for respondent.

ATWATER, J.

The cause of action in this case, and the pleadings, are substantially the same as in the case of Nininger v. Borup, 5 Minn. [523], it being a claim for damages arising from the neglect of the defendants to give notice of protest of a note to the indorser, whereby he was discharged. The plaintiff, maker of the note, and indorser, are the same as those named in the case above cited, the note being one arising out of the same transaction as there stated, and a reference to that case will render unnecessary any more particular statement of facts in this. There was a verdict for the plaintiff for the sum of $3,342.37. The defendants moved for a new trial, which motion was overruled, and from the order entered thereon the defendants appealed to this court.

Upon the trial of the cause, the plaintiff offered in evidence the deposition of one J. A. W. Jones, and the defendants thereupon objected to the following question or interrogatory put to said witness, and the answer thereto, viz.: "When you were employed to do this (leave the note with defendants), what were your orders?" Answer, "I was ordered to take the note to J. Jay Knox & Co.'s bank for collection, and at the same time to state where this indorser lived, as there were two of the same name, one residing at St. Paul, the other in Nininger; that this one lived at Nininger." This evidence was objected to as incompetent, irrelevant and immaterial. Whereupon the counsel for the plaintiff insisted, that said testimony was admissible as part of the transaction, and as corroborative of the witness. The court admitted the testimony, remarking, that to prove special agency, it was frequently necessary and unavoidable to show the special instructions creating and qualifying it.

This evidence was properly admitted upon the ground suggested by the court upon the trial. The question of whether the defendants had notice of the residence of the indorser, was directly put in issue by the pleadings. It was necessary for the plaintiff to show that his agent had done two acts requisite to fix the liability of defendants, viz.: that he had left the note with defendants, and that he had given defendants notice of the residence of the indorser. It was also necessary for the plaintiff to show that he had authorized or directed Jones to do these acts. If Jones, without any request on the part of the plaintiff, and of his own motion, had left this note with defendants, and given the notice, it will scarcely be claimed that the plaintiff would be entitled to recover of defendants, upon proper objection that the owner of the note had not connected himself with the transaction. The plaintiff appointed an agent for a special purpose, — can it be doubted but that he should be permitted to show what the purpose was, where it becomes material and is embraced within the issues raised by the pleadings? The answer admits that the note was left with defendants, as stated in the complaint, but denies notice of the residence of the indorser. If the first named fact had been denied, the plaintiff unquestionably would have been entitled to show that he employed Jones to leave the note with defendants, for, as above stated, merely showing or proving that Jones had left the note with defendants, without connecting the plaintiff with the transaction, would be insufficient. But there would seem no more impropriety in permitting the latter fact to be...