Wilson v. Kelso

• Decision Date: 24 February 1911
• Citation: 80 A. 895,115 Md. 162
• Parties: WILSON v. KELSO.
• Court: Maryland Court of Appeals

80 A. 895

115 Md. 162

WILSON v. KELSO.

Court of Appeals of Maryland

February 24, 1911

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.

Action by Scott Kelso against Francis R. Wilson. Judgment for plaintiff, and defendant appeals. Affirmed.

The defendant's fifth prayer was granted, and his first second, third, fourth, and sixth prayers were granted, with modifications as follows:

"(1) The defendant by his attorneys prays the court to instruct the jury that if they find from the evidence that H. P Reynolds & Co. obtained the note sued on by fraud, and that the plaintiff had actual knowledge of such fraud before he purchased and paid for the said note, that then their verdict must be for the defendant.

"(2) And further prays the court to instruct the jury that if they find the note sued on was in fact obtained by H. P. Reynolds & Co. by fraud that then the burden of proof is on the plaintiff, and it is incumbent on him to show that he acquired and paid for the same in good faith for value before maturity without actual knowledge of any infirmity or defect in the title of the persons negotiating it to the plaintiff.

"(3) And further prays the court to instruct the jury that if they find from the evidence that the note sued on was obtained from the signers of the note by fraud, and that the plaintiff had actual knowledge of such fraud, or had knowledge of such facts that this action in taking the note amounted to bad faith, that then their verdict must be for the defendant.

"(4) And further prays the court to instruct the jury that if they find from the evidence that Reynolds & Co. obtained the note sued on or any signature thereto by fraud or other unlawful means or that they negotiated the same in breach of faith, and that the plaintiff had actual knowledge of any infirmity in the same, or defect in the title of H. P. Reynolds & Co., before he paid for the same, that then the plaintiff is not entitled to recover, and their verdict must therefore be for the defendant.

"(5) The defendant further prays the court to instruct the jury that they are at liberty to consider all the facts and circumstances given in evidence in this case in determining whether the plaintiff at the time he purchased the note sued on bought the same in good faith and without notice of fraud in obtaining the execution of said note.

"(6) If the jury believe from the evidence that the promissory note sued on in this case was obtained from the signers thereto by fraud, then the burden of proof is on the plaintiff to show that he became the holder of said note before it was overdue in good faith for value and without actual knowledge of any infirmity or defect in the title of persons negotiating it to the plaintiff, and, unless the jury believe from the evidence that said note was thus acquired by the plaintiff, their verdict should be for the defendant."

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, THOMAS, PATTISON, and URNER, JJ.

Ferdinand Williams, for appellant.

F. Brooke Whiting and Charles D. Wagaman, for appellee.

BURKE J.

The appellee, Scott Kelso, recovered a judgment in the circuit court for Washington county for the sum of $1,146.33 against Francis R. Wilson, and from that judgment the defendant has brought this appeal.

The record presents three bills of exception--two relate to the rulings of the court upon questions of evidence, and the other to the rejection of the defendant's seventh prayer. The court sustained a demurrer to the defendant's fifth plea, and overruled a motion in arrest of judgment. The correctness of these rulings is also presented by the record.

The evidence shows that the defendant and 12 other persons executed a promissory note in the following words and figures: "Flintstone, Md., February 15, 1906. $1000.00. Two years after date for value received we, or either of us promise to pay to H. P. Reynolds & Co., or bearer, one thousand dollars at the Second National Bank of Cumberland, Md., with interest at 6% per annum, interest payable annually." H. P. Reynolds & Co., the payees named in the note, were horse dealers residing in Pennsylvania, and the note sued on was one of three joint and several promissory notes each for $1,000 given to Reynolds & Co. for a German coach stallion sold to the defendant and others. The note was indorsed by H. P. Reynolds & Co., and delivered to the plaintiff, and was duly presented for payment and was dishonored. The makers refused to pay the note, and the plaintiff brought suit in the circuit court for Allegany county against the defendant and 10 other makers of the note. The case was removed to the circuit court for Washington county, where trial was had, and the judgment recovered. No mention is made of the motion in arrest of judgment in the brief of the appellant, nor was it adverted to in the oral argument of his counsel at the hearing in this court. We think the motion was properly overruled.

The record shows that by an agreement of counsel the court ordered the clerk to take the verdict. The jury announced a verdict in these words: "Verdict for plaintiff and assess the damages at the full amount." The clerk refused to receive this verdict, and directed the jury to return to the jury room and state the amount of the damages. They then found their verdict for the plaintiff, and assessed the damages at $1,146.33. This verdict, which is in proper form, was received by the clerk and recorded. The objection that the clerk had no power to order the jury to correct the form of the verdict is without merit. They did voluntarily correct the form of the verdict, and the objection complained of is merely the correction of an informality. The court will not arrest a judgment, except for substantial error apparent upon the face of the record. The correction which the jury made was one which they had a perfect right to make under the circumstances stated.

The plaintiff before the trial entered a non pros. as to the other ten defendants, and the case was tried against the appellant as the sole defendant. He pleaded the general issue pleas, and four special pleas setting up fraud in the procuring of the note by Reynolds & Co., and notice of fraud by the plaintiff before he purchased or paid for the note. The case was tried upon issues joined upon the general issue pleas, and upon issues properly framed upon replications to the special pleas.

We find no reversible error in sustaining the demurrer to the defendant's fifth plea, which alleged that the payees did not indorse the note to the plaintiff, and that the signature on the back of the note was not the signature of Reynolds & Co., nor made by their authority. This defense was available to the defendant under the general issue pleas, and therefore no injury was done by the ruling on the demurrer. There is not a particle of evidence in the record tending to support the allegation of this plea, and there seems to be no doubt that the note was properly indorsed by Reynolds & Co., as alleged in the declaration. The plaintiff was called as a witness in his own behalf, and was shown the note sued on. He testified that he was the holder of the note, and that it had not been paid. The note was then offered and admitted in evidence over the objection of the defendant, and this ruling constitutes the first exception.

Where the obligation is joint and several, an ancient and familiar rule of law forbids it to be treated as several as to some of the obligers, and joint as to the rest. The obligee has the right of choice between the two methods of proceeding; but must resort to one or the other exclusively, and cannot combine both. He must proceed either severally against each or jointly against all. When the contract is several as well...