Whiteford v. Munroe

• Decision Date: 27 March 1861
• Citation: 17 Md. 135
• Parties: JAMES WHITEFORD v. JOHN H. MUNROE.
• Court: Maryland Court of Appeals

17 Md. 135

JAMES WHITEFORD v. JOHN H. MUNROE.

Court of Appeals of Maryland.

March 27, 1861

Prayers, that if the jury find, from the evidence, that the note sued on " is mentioned in said deed, " and " was intended to be secured by said deed, " are erroneous, because they submit the construction of the deed to the jury, when it ought to have been decided by the court.

A deed of trust executed by H. to secure M. and B. for their liabilities on certain notes, describes one of such notes as a note dated 20th of July 1857, drawn by H endorsed by B. and M., and payable at the Merchants Bank of Baltimore. HELD:

That a joint and several note for the same amount payable at the same bank, dated the 29 th of July 1857, drawn by H. and M. in favor of and endorsed by B., is not so nearly within this description as to render the deed operative as to it.

A deed of trust was executed by H., to secure M. and B. for their liabilities on certain specified notes, and also on " any other notes, if any there be, upon which said M. and B., or either of them, may have become liable for said H. HELD:

That these general provisions cannot be construed so to include notes not particularly specified, on which M.'s name appears, as to make the deed itself any evidence of a recognition by M. of his liability upon such notes.

In order to bind one of two alleged joint makers of a note where the payee's endorsement is not genuine, in a suit by the holder of the note against such maker, it is necessary to show that the defendant's name was signed by his authority or sanction, and also that the payee's name was endorsed thereon with the defendant's knowledge and consent.

In order to enable a holder to recover against one of two alleged joint makers of a note, it must be shown that the defendant's signature is genuine, or was authorized to be signed, or sanctioned by him after it was signed, and that the payee's endorsement thereon is his genuine endorsement.

In a suit by the holder against the maker, the endorser is a competent witness for the defendant, because though his testimony may defeat the action and discharge the maker, he may, nevertheless, be liable on the endorsement, and lose the benefit of the judgment against the maker.

A deed of trust was executed by H., to secure M. and B. for their liabilities on certain notes. A suit was brought against M. by the holder of notes purporting to be drawn by H. and M. in favor of B., and by him endorsed, and B. was offered as a witness for the defendant. HELD:

That B. had no such interest in the trust fund created by this deed as to disqualify him as a witness, for the deed conveys the property of H., and though M. may escape liability on the notes in suit, it does not follow that the fund would be released from those notes as debts of H.

A party cannot be held liable upon paper on which his name has been forged, merely because he may have paid, without objection, other notes forged by the same person.

APPEAL from the Circuit Court for Prince George's county.

Action, brought on the 15th of December 1857, by the appellant against the appellee, on two joint and several promissory notes, purporting to be drawn by Geo. W. Harrison and the defendant, John H. Munroe, in favor of James M. Benton, or order, and by him endorsed, negotiable and payable at the Merchants Bank of Baltimore, one for $750, dated July 29th, 1857, and the other for $450, dated September 21st, 1857, each at sixty days. The defendant pleaded that he did not promise as alleged, and payment.

A commission was issued to Alexandria, under which the testimony of five witnesses, including James M. Benton, the alleged endorser of said notes, was taken and returned. These witnesses prove, substantially, that the defendant, Munroe, was the brother-in-law of Harrison, and that Benton married the sister of Harrison's wife; that some time prior to and at the date of said notes, Harrison was a merchant in Alexandria, and so continued until the latter part of 1857, or early in 1858, when he quit business and fled, to avoid arrest on a charge of forgery; that the body of said notes and the names of Harrison as well as that of Munroe, thereto signed, are in the handwriting of Harrison; that prior to and about the date of said notes, Harrison had issued a large number of notes with the names of Munroe and Benton attached thereto, as drawers or endorsers, upon many of which the name of Munroe was signed or endorsed by Harrison, and that he (Munroe) knew that his name had been so used by Harrison on some of such notes, and at first admitted or did not deny, but afterwards did deny the genuineness of his signatures thereto, and his liability thereon; some of them, however, were paid or satisfied by him. The witnesses do not prove any express authority given by Munroe to Harrison to sign his name; most of them say they know nothing of any such authority; one of them, however, states that he often heard Harrison say, after a warrant was issued for his arrest, that he had Munroe's consent to use his name.

The deed of trust referred to by the witnesses, and offered in evidence in the course of the trial, is dated the 9th of January 1858, and is between George W. Harrison, of the first part, and David Funsten, of the second part. The following parts of it only need be stated. It recites:

" Whereas the said Harrison is indebted to sundry persons, who hold as evidence of such indebtedness, in great part, notes and drafts drawn by himself, endorsed by others for his accommodation, or drawn by others and loaned to him for his use, or upon which others are in some way bound or liable, for his benefit, and he desires to secure the payment of said indebtedness, and at the same time to protect and save harmless from all losses, costs and damages whatsoever, those so bound or liable with or for him, as aforesaid, or otherwise."

It then conveys certain specified real and personal property of the grantor, Harrison, all his stock in trade and merchandize, and all accounts and debts due him, to the said Funsten; " in trust, however, for the following purposes, and none other; that is to say, to convert the said property into cash, with all convenient despatch, and as speedily as may be, without unreasonable sacrifice, and to apply the money so arising to the payment of the notes, drafts, & c., following." Then follows an enumeration and specification of certain notes and drafts, from No. 1 to 24, one of which only it is necessary to state, viz: " No. 17, note dated 20th July 1857, drawn by said Harrison, endorsed by said Benton and Munroe, and payable at the Merchants Bank of Baltimore, for $750." The deed then proceeds:

" And to secure, also, any note or notes, or drafts which may be given in renewal of any of the notes or drafts heretofore described, whether such renewal be in whole or in part; upon all of which said notes and drafts heretofore described, the said James M. Benton, John H. Munroe and Elizabeth Harrison have become and are liable, whether as drawers, endorsers or otherwise, solely for the use of the said George W. Harrison, and which said notes and drafts the said George W. Harrison has used and negotiated." It then directs the trustee to apply the fund to pay in full said notes and drafts, from No. 1 to No. 17, inclusive, in the order in which they stand, and then pro rata to the others, Nos. 18 to 24, inclusive, " and of any other notes or drafts, if any there be, and the same be timely brought to the notice of said trustee, upon which the said Benton and Munroe, and the said Elizabeth Harrison, or either of them, may have become liable for his, the said G. W. Harrison's, accommodation, such payments of the notes, from 18 to 24, (inclusive of both,) and the other notes last aforesaid, if any there be, to be applied without preference or priority." Then, at the close of the deed, is the following provision:

" And whereas it is possible that in the description of the notes and drafts hereinbefore given, some minor inaccuracies may have occurred, in dates, amounts, or otherwise, the said trustee is, nevertheless, to apply the said fund in the manner hereinbefore indicated, whenever, notwithstanding such inaccuracies, if any there be, the correspondence between the said description and the said notes and drafts is sufficient to establish or satisfy him of their identity."

1 st Exception. The plaintiff offered to prove that the signature of Harrison to the $750 note mentioned in the declaration, is in his proper handwriting, and further offered to prove that the deed from said Harrison to Funsten (which is then set out in the exception) was procured by the defendant, Munroe, for the purpose of securing him for his liability as a security of Harrison, and then asked the court to instruct the jury:--That if they find, from the evidence, that the said deed was procured to be executed by the defendant, to secure him for his liability upon said notes mentioned in the deed, and that the defendant admitted that the said security was sufficient to secure him fully for said liabilities, and that said note sued on is mentioned in said deed, then that said deed is evidence of his liability as one of the signers of said note. But the court (CRAIN, J.) refused to give this instruction, and to this refusal the plaintiff excepted.

2 nd Exception. After the proof offered in the preceding exception, made part of this, the plaintiff further to prove that the signature of Munroe to said $750 note is in the handwriting of Harrison, the other party thereto, and for the purpose of showing the authority of Harrison to sign the name of Munroe, or the ratification by Munroe of the said signature of his name, offered in evidence the aforesaid deed from...