Sumwalt v. Ridgely

• Decision Date: 05 June 1863
• Citation: 20 Md. 107
• Parties: THOHAS S. SUMWALT v. LOT W. RIDGELY.
• Court: Maryland Court of Appeals

20 Md. 107

THOHAS S. SUMWALT v. LOT W. RIDGELY.

Court of Appeals of Maryland.

June 5, 1863

APPEAL from the Superior Court of Baltimore City:

This was an action instituted on the 29th day of June, A. D. 1855 by the appellee against the appellant, and ten others describing them as vestry-men of Saint Stephen's Episcopal Church of Baltimore City. The narr. in addition to the common counts, contained one special count upon a promissory note. The plaintiff filed with the narr. an affidavit, stating that there was due and owing to him from " The Vestry of St. Stephen's Episcopal Church, the defendants," the sum of money specified in the note annexed thereto, which was as follows:

" $742. BALTIMORE, January 1 st, 1857.

Twelve months after date, we promise to pay to the order of Lot W Ridgely, seven hundred and forty-two dollars, value received.

THOS S. SUMWALT, Treas.

of St. Stephen's Epc'l Church Fund."

All the defendants appeared and pleaded the general issue with affidavit of defence. The plaintiff afterwards amended his writ and declaration by striking off the ten defendants other than Sumwalt, leaving him the sole remaining defendant. The amended narr. contained but one count upon the promissory note.

The evidence in the cause as set forth in the first and second exception, is stated in the opinion of this Court.

Third Exception. The defendant further proved by James D. McCabe, that he became Rector of St. Stephen's Church on the 1st of May 1857, and was appointed agent to make collections to pay off the Church debt, and that Sumwalt was made treasurer of the church funds; that he, witness, obtained with donations, conditional promises from various persons to take pews at a valuation of $300 each, provided ten persons would agree so to do; that nine persons having so agreed, Wilson agreed to be the tenth, that the nine complied with said agreement and paid their money, but that Wilson who had been paid all his debt but this note now sued upon, afterwards refused to comply therewith; that the agreement was to pay him his whole debt, this note included, less the amount agreed to be paid for the pew, and that the church has offered the pew and the balance of the note, but that Wilson has failed in the performance of his part of said agreement.

The plaintiff then prayed the Court to instruct the jury, that if they believed that the defendant made the note and passed it to Wilson; that it was given in consideration of work done upon St. Stephen's Church, and that the name of the payee was left in blank; that it was passed to the plaintiff by Wilson before maturity, in due course of business, for a valuable consideration, and that the plaintiff afterwards inserted his name as payee; then the note was binding on the defendant as his individual note, and the corporate authorities of the Church were not bound.

The defendant also offered the following prayers:

1st. That the note is not the legal obligation of the defendant, and does not support the declaration.

2nd. That if the note was given for the debt of the vestry, then the plaintiff cannot recover, because there is no consideration expressed on the face of the note sufficient to gratify the requirements of the Statute of Frauds in relation to the assuming to pay the debt of another.

3rd. That if the note was given by the defendant as treasurer of the building fund of the Church, and not for his private account, then the plaintiff is not entitled to recover, if the jury shall believe the defendant was authorized as treasurer to give such note, and that the plaintiff knew it was given for the Church debt.

4th. That if the jury shall believe that the note was given in blank and transferred to the plaintiff in blank, who afterwards filled up the blank with his own name; that the plaintiff took the same on account of a previous debt due by Wilson to him, knowing that it was for work done upon the Church; that after the note was given to Wilson, the plaintiff agreed with nine others to take pews at $300 each, and that such other persons did take pews and did pay for the same; then the defendant is entitled to be credited with $300 on the note, altho' it had been transferred at the time of the agreement, unless the jury shall also believe that said Wilson had told the agent of the Church at the time of said agreement that it had been so transferred; and if the jury shall believe that the note was given by authority of the vestry, and by the defendant as their agent for work done on the Church by Wilson, and given as their obligation, and in blank, and transferred to the plaintiff, in blank who took it with knowledge of all the facts, and that it was passed to him for a pre-existing debt, and drawn in blank that it might be so transferred; then the plaintiff is not entitled to recover.

5th. That if the note was given for the debt of the Church and not for any debt due by the defendant, it was nudum pactum and void for want of consideration.

6th. That if before the note was given to the plaintiff, Wilson made the agreement in reference to taking a pew, which was complied with by the vestry, and the nine others, then the defendant is entitled to a credit of $300 on the note as of the date of the agreement.

The Court below (MARTIN, J.) granted the plaintiff's prayer and rejected the several prayers of the defendant. The defendant excepted, and the verdict of the jury being for the plaintiff, appealed to this Court.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J. Geo. H. Williams and Thos. S. Alexander, for the appellant, argued:

1. That the note offered in evidence is the note of the church only, and not the note of the appellant, and does not support the declaration. Byles on Bills, 4 Am. Ed., 27, note 1. Story on Agency, sec. 269. Cooke vs. Sanford, 3 Dana., 237. Johnson vs. Smith, 21 Conn., 627. Key vs. Parnham, 6 H. & J., 418.

2. That if the note be the contract between the appellant and the appellee, parol evidence was not admissible to vary, explain or alter it; that being payee therein, the appellee could not prove by parol that he was in the condition practically of endorsee; and that the Court below erred in permitting defences exclusively belonging to an endorsee. Rail Road Co. vs. Thompson, 10 Md. Rep., 76.

3. That as between the maker and the payee, the inquiry into the consideration was open.

4. That as between the maker and the payee here, the note was void.

(1st.) For want of consideration; (2nd.) Because it does not gratify the requisitions of the Statute of Frauds. Fricker vs. Thomlinson, 1 Man. & Grang., 648. Sloan vs. Wilson, 4 H. & J., 322. Wyman vs. Gray, 7 H. & J., 409. Elliott, vs. Giese, Id., 457. Rodgers vs. Waters, 2 G. & J., 64. Byles on Bills, 97, 98. Coddington vs. Bay, 20 Johns., 647, 649. Foster vs. Jolly, 1 Cromp. Mees. & Ros., 703.

5. That it was open to the jury to find that, before the transfer of the note to the plaintiff, an agreement had been made by Wilson to take the pew, and that the plaintiff took the note with full knowledge of every fact concerning it, and if so, then it is a fraud on the defendant, and a conspiracy between plaintiff and Wilson, to make the church, or defendant, pay the money on the note by means of the transfer to plaintiff, and to get the money from those who paid for the pews on the sole condition that ten pews should be so taken.

6. That if the jury find that the plaintiff took it with full knowledge, then the note was entitled to be credited with $300, as indicated by the prayer, all which questions the Court excluded from the jury.

Wm. Price, for the appellee:

1. As to whether the note is that of Sumwalt, or that of the corporation by him as their agent: See Story on Prom. Notes, secs. 67 to 71. If it is the individual note it is not for another party, and the consideration is not to be inquired into. Hilles vs. Bannister & Butler, 8 Cowen, 33. Barker vs. Mechan. Fire Ins. Co., 3 Wend., 98, 99. Leadbette vs. Farrow, 5 Maule. & Sel., 345.

2. Ridgely is not the original party, but the transferree. Ross' Commer. Law, 165. 82 Law Lib., 121. The note went out in blank, and this case and many others show, that a bona fide transferree has a right to insert his name as payee. It is like the case of a note payable to order. Coddington vs. Bay, 20 Johns., 647. The note in this case was taken in a regular course of business and bona fide. Ridgely not being an original party, is not to be affected, unless he can...