Sawyer, Wallace & Co. v. Macaulay

• Decision Date: 16 February 1883
• Citation: 18 S.C. 543
• Court: South Carolina Supreme Court
• Parties: SAWYER, WALLACE & CO. v. MACAULAY.

18 S.C. 543

SAWYER, WALLACE & CO.

v.MACAULAY.

Supreme Court of South Carolina.

Feb. 16th, 1883.

1. To permit this court to consider alleged errors of the Circuit judge in omissions to charge, it is absolutely necessary that the “Case” should show that he was requested so to charge.

2. The “Case” is the source of information for this court, and alleged errors which are not there disclosed cannot be considered.

3. Under the law of North Carolina, which makes an endorser a surety, unless it be otherwise clearly expressed, an endorsement for collection only, without change of ownership, does not make such endorsers co-sureties with their prior endorser for value.

4. It is too sweeping a proposition that notes are illegal if they “arose directly or indirectly out of transactions in futures,” and the Circuit judge committed no error in refusing so to charge.

5. Where the brief does not give the judge's charge to the jury, a detached fragment of the charge separated from its context cannot be held by this court to be erroneous.

6. Action on a note executed and payable in North Carolina is not barred in this State within the six years here allowed, although the limitation of actions as there prescribed is for a shorter period. The statute of limitations is applied according to the lex fori.

7. Ownership of a note alleged in the complaint and admitted in the answer, could not at the trial be questioned upon proof of an endorsement by plaintiffs to their attorneys for collection.

Before COTHRAN, J., March, 1882.

Action commenced February 5th, 1881. The opinion states the case.

Mr. S. P. Hamilton, for appellant.

Mr. T. C. Gaston, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

This was an action on three notes executed by Stenhouse, Macaulay & Co., merchants doing business in Charlotte, N. C. The first was executed on July 28th, 1876, to the plaintiffs and payable at Merchants and Farmers National Bank, Charlotte, eighteen months after date. The second was dated October 24th, 1877, executed by the same parties and payable at the same bank, and the third bore date October 25th, 1877, executed by same parties and payable at same bank. All three of the notes were endorsed by the defendant by simply placing his name, “D. Macaulay,” on the back of each. Each note also had the following endorsement by the plaintiffs: “Pay to J. H. McAden, president, or order. Sawyer, Wallace & Co.” This endorsement, at the trial, had on each been canceled by pen marks drawn through them; also on each was found at the trial, “Pay Patterson & Gaston, or order, for collection. Sawyer, Wallace & Co.” Patterson & Gaston were the attorneys who brought the action in the name of the plaintiffs.

At the close of plaintiffs' testimony, the defendant moved for a non-suit on the ground that, it appearing that the notes had been endorsed to Patterson & Gaston, the plaintiffs were not entitled to sue. The judge refused this motion, holding that plaintiffs having alleged ownership in their complaint, and this not being denied in the answer, the ownership must be taken as admitted. The verdict was for the plaintiffs, the amount of the notes, to wit, $1,720.62.

The defendant is now before this court upon six exceptions, four of which assign error in the refusal of the judge to charge certain propositions; the fifth, because his Honor did not allow J. E. Stenhouse, one of the firm, to testify as to the character and business of buying and selling futures and the custom of trade in connection with such transactions generally, and the sixth, because his Honor erred in not deciding that the note for $645.10 (the first note mentioned), being barred in North Carolina before the commencement of this action, the plaintiffs could not recover; and, also, in arrest of judgment, because the three notes being endorsed by Sawyer, Wallace & Co., the plaintiffs, to Patterson & Gaston, for collection, the plaintiffs could not maintain an action in their own names as owners and holders.

As to the first four and sixth exceptions, which involve errors of omission to charge, we do not find anywhere in the “Case” or “Brief” that the questions there raised were brought to the attention of the judge by request to charge. This, under our decisions, was absolutely necessary so as to permit this court to consider them, and especially does it become the duty of the court to deny consideration when the objection is interposed by the respondent claiming his legal rights. In Madsden v. Phoenix Fire Ins. Co., 1 S. C. 29, Mr. Justice Willard said: “The third ground of appeal is insufficient so far as it is based upon the failure of the judge to charge certain propositions therein set forth for want of a request to charge, as was the case in reference to the second ground. If counsel desire to bring any view of the law of a case to the attention of the jury, they must make such view the subject of a request to charge, and, failing in this, they cannot allege error. The maintenance of this rule is essential to a correct and careful administration of justice when the appellate court is limited to a consideration of exceptions on points of law, and cannot look into the whole case to see that substantial justice has been done between the parties.”

In Abrahams v. Kelly and Barrett, 2 S. C. 238, the same justice, speaking for the court, said: “It does not appear that the second proposition was brought to the notice of the Circuit judge at the trial. It was not touched upon in the charge, nor was there any request to charge made in respect to it. The presiding judge is not bound to submit any particular proposition of law unless his attention is called to it and a request made to that effect. However important to the case such a proposition may be, error cannot be alleged unless, after request, he has refused to submit it. Nor is a misstatement of the law error unless his attention is called to it and he neglects or refuses to correct it. It is the office of exceptions to bring before this court only such matters of law as were the subject of contest upon the trial.”

In Fox v. Railroad Co., 4 S. C. 543, it was held that a failure to charge a particular proposition of law could not be assigned as error unless the judge on request declines so to charge, and the court said, when such an objection is insisted upon on behalf of the respondent, the court must necessarily regard it.

The same principle was held and enforced in the late case of Sullivan v. Jones, 14 S. C. 365, where Mr. Justice McIver said: “All of these grounds except the first, second and third complain of omission to charge upon points which, so far as the ‘Case’ discloses, were not brought to the attention of the judge during the trial, either by request to charge or otherwise, and therefore are not properly before us.”

Neither do we find anything in the “Case” to sustain the fifth exception. If the presiding judge limited or curtailed J. E. Stenhouse “in his testimony as to the character and business of buying and selling futures, or the custom of trade in connection with such transactions generally,” the “Case” submitted fails to show it and it is not admitted by respondent. In fact it is denied in respondent's argument. The only statement we have is found in the exception raising the question. This the court cannot regard. The “Case” is the source of our information as to what occurred below; its very object is to inform the court authoritatively of the legal questions contested below, and of the facts pertaining thereto. This court has held that as to these matters it confines itself to the “Case.” Sheriff v. Welborn, 14 S. C. 480. And it cannot consider statements in exceptions not found in the “Case.” The defects in an appeal herein are fatal, especially where the respondent not only fails to admit the statements in exceptions, but denies their existence and demands the legal consequences applicable.

The court, however, could not but regret that an appeal should terminate in this way if there was merit therein which, if otherwise presented and in accordance with the rules in such cases, might have been successful. We have therefore, ex gratia, considered the exceptions so far as to be satisfied that no injustice will be done, or the rights of parties lost or defeated by enforcing the principles which the cases cited...