Totten v. Bucy

• Decision Date: 19 January 1882
• Citation: 57 Md. 446
• Parties: MORTIMER C. TOTTEN v. LEMUEL BUCY.
• Court: Maryland Court of Appeals

57 Md. 446

MORTIMER C. TOTTEN v. LEMUEL BUCY.

Court of Appeals of Maryland

January 19, 1882

APPEAL from the Circuit Court for Allegany County.

The case is stated in the opinion of the Court.

Exceptions.--At the trial, after the testimony summarized in the opinion was in, the plaintiff offered five prayers; the third and fifth are stated in the opinion: the others are as follows:

1. That there is no sufficient evidence in this cause of knowledge on the part of the plaintiff, at the time he purchased the note sued on, of any fraud in the obtention of said note, or of failure of consideration for the same, if they shall find such fraud or want of consideration, and if they find that the said note was signed by the defendant and purchased by the plaintiff bona fide for value, before its maturity, then their verdict must be for the plaintiff.

2. That if the jury find from the evidence in the cause, that the defendant signed the note sued on in this case, and shall further find, that the bearer, H. K. White & Co., or their agent, passed it to the plaintiff for a valuable consideration on the 21st October, 1879, and before said note became due and payable, and shall further find that said plaintiff purchased said note without notice of any fraud in the obtention of said note, or any failure of consideration therein, then their verdict must be for the plaintiff.

4. That if the jury find from the evidence in the cause, that the plaintiff purchased the note sued on in this case for value with no other knowledge than the note and the certificate of property furnished on their face, then they must find that plaintiff was a bona fide holder of said note, and no knowledge of fraud or want of consideration in the giving of said note, subsequently acquired by him, can affect his title as a bona fide holder for value.

The defendant offered the following prayer:

If the jury find that the plaintiff before, or at the time he received said note, had knowledge of the want of any consideration for the same, (if they find, there was a total want of consideration therefor,) or that said note was obtained by H. K. White & Co., by fraud practiced upon the defendant in obtaining the same, then the plaintiff is not entitled to recover.

The Court (PEARRE, J.) granted the second and fourth of plaintiff's prayers, and rejected his other prayers, and granted the defendant's prayer. The plaintiff excepted and the verdict and judgment being for the defendant, he appealed.

The cause was argued before BARTOL, C.J., GRASON, ALVEY and MAGRUDER, J., for the appellee, and submitted for the appellant.

Wm. M. Price, and J. N. Willison, for the appellant.

R. T. Semmes, for the appellee.

ALVEY J., delivered the opinion of the Court.

This action is brought upon a promissory note for $180, dated October 10, 1879, payable six months after date, to H. K. White & Co., or bearer. By the terms of the note, it was made payable at the First National Bank of Cumberland.

The plaintiff claims to have acquired title to the note for valuable consideration, before its maturity; and the defendant pleads and insists that the note was obtained from him by the fraud and deceit of the payees named in the note, through their agent; and that the plaintiff took the note with full knowledge of the facts under which the same was procured from him, the defendant. And, at the trial below, under the instructions of the Court, the jury appear to have so found.

It appears from the record, that the note was given for the deferred payment on a certain number of washing machines, that were to be furnished to the defendant, at a certain price, to be disposed of by him as agent of the payees of the note. According to the evidence on the part of the defendant, which was not controverted at the trial, only a small portion of the machines were furnished, and they were found to be utterly worthless, and could not be disposed of: That the whole transaction, according to the testimony of the defendant, upon which the note was obtained, was a fraud and a deception, practiced by the agent of the payees of the note upon the defendant; and that similar frauds were practiced upon others, to whom sales of the machines were made, by the same agent. The terms of the arrangement were reduced to writing at the time, and executed in duplicate form, each party retaining one of the duplicate originals thus executed. This contract, while it prescribed the number and price of the machines to be furnished, and the terms upon which they were to be supplied to the defendant as agent for sale, contained no stipulation in reference to the making of a negotiable promissory note for the deferred payment on the machines, before they were received by the defendant. It simply stipulated that for the five dozen machines to be furnished at $5 each, the defendant should pay $30 on each dozen ordered, as they were sold, and the balance of $180 was to be paid in six months. The defendant, however, in his testimony, states that the party acting for the payees of the note, suggested and urged certain reasons why a note should be given for this $180, and that it would be placed in the bank where payable, "and that the money realized from the sales of the machines could be applied to the payment; but that he, (the defendant,) had better not move around much for a few days, until he had thoroughly tested the machines." That the agent left one dozen of the machines, and they were thoroughly tested, and found to be entirely worthless, and none of them could be disposed of, though efforts were made to sell them. It appears that the note in question, instead of being placed at the bank where payable, was, with other notes of a similar character, disposed of to the plaintiff, a broker in Piedmont, West Virginia, on the 21st of October, 1879.

1. The first question raised by exception, is that upon the admissibility in evidence of the contract. This was offered by the defendant for the purpose of showing the nature of the transaction, and it was objected to by the plaintiff, upon the ground, as it would appear, that the duplicate held by the payees of the note was not produced as...