Woodruff v. Munroe

• Decision Date: 01 July 1870
• Citation: 33 Md. 146
• Parties: ALBERT WOODRUFF and Jeremiah P. Robinson v. JOHN H. MUNROE.
• Court: Maryland Court of Appeals

33 Md. 146

ALBERT WOODRUFF and Jeremiah P. Robinson v. JOHN H. MUNROE.

Court of Appeals of Maryland

July 1, 1870

Appeal from the Circuit Court for Prince George's County.

This was an action instituted by the appellants, in January, 1858 against the appellee to recover the amount of five promissory notes, of which George W. Harrison was the drawer, and the appellee, together with James M. Benton and Elizabeth Harrison, were endorsers. The appellee pleaded that he did not promise as alleged, and issue was joined thereon. The case was tried once before and will be found in 17 Md. 159. On an appeal from the Circuit Court, its judgment was reversed, and on the 18th of April, 1861, the case was sent back under a procedendo, "to a new trial thereof, in the same manner as if no trial had taken place."

On application the court, on the 29th of November, 1865 directed three commissions to be issued to take testimony one to Andrew Boardman, of New York City, one to Albert Stuart, of Alexandria, Va., and the third to Henry W. Thomas of Fairfax Court House, Va. Proof was taken under the commission to Boardman only, and returned.

First Exception.--At the trial the defendant admitted the due presentation of the notes sued on, and the refusal to pay and due and proper notice to him of protest, etc.; the plaintiffs then read to the jury the evidence taken under the commission to Andrew Boardman, and offered to read the evidence taken under a commission issued in this cause on the 22nd of December, 1869, to W. C. Yeaton and A. Stuart; to the admissibility of this latter evidence the defendant objected, upon the ground that it had been taken before the case was carried to the Court of Appeals, and insisted that proof so taken could not be read at the procedendo trial, there being no evidence that the witnesses were dead. The court (A.

B. Hagner, Special Judge) sustained the objection, and refused to allow the evidence to be read to the jury. To this refusal the plaintiffs excepted.

Second Exception.--The plaintiffs, to prove that the defendant had admitted his liability on said notes, offered to read to the jury the deed of trust from Harrison to Funsten, executed to secure the payment of these notes with others, but on objection by the defendant, the court refused to allow the deed to be read in evidence, being of opinion that the notes sued on were not included in said deed. To this ruling the plaintiffs excepted.

Third Exception.--The plaintiffs offered to read to the jury the testimony taken under a commission issued to Yeaton and Stuart, on the 22nd of December, 1859, in the case of Walters and Harvey v. Munroe, the same having been admitted in the former trial under an agreement of counsel, but the court on objection by the defendant refused to permit the testimony to be read, for the reason that since said agreement was made, this case had been sent to the Court of Appeals, and was then being tried under a procedendo, and that the agreement to use the testimony at the first trial did not authorize its being read at this trial. To this ruling the plaintiffs excepted.

Fourth Exception.--The plaintiffs offered three prayers; the first and second were granted, the following was rejected:

3. The plaintiffs offered proof of the admission of the defendant, only for the purpose of establishing the authority on the part of the defendant to have his name endorsed upon said notes, and asked the court to instruct the jury that the admission of the defendant, if believed by them was evidence from which they might find such authority on his part to have his name endorsed on said notes.

The defendant asked the following instructions:

1. If the jury believe that the names of Elizabeth Harrison and John H. Munroe, or either of them to the two notes marked W. and R., are not in the genuine handwriting of the said parties respectively, or that their names or either of them were placed on the said notes without their authority, or that the placing of their said names or either of them upon the said notes were never sanctioned by them, before or after they were placed upon the said notes, and before or after their maturity, the plaintiffs are not entitled to recover in this cause on the said notes.

2. If the jury believe that the name of John H. Munroe on the notes marked F. K., is not in his genuine handwriting, or that his name was not endorsed on the said notes by his authority, or the said placing of his name was never ratified or sanctioned by him after it was placed upon the said notes and before their maturity, the plaintiffs are not entitled to recover on the said notes in this action.

3. That there is no evidence in the cause to show that the name of the defendant was placed upon any of the said notes by his authority.

4. That there is no evidence in the cause to enable the plaintiff to recover upon the said notes described in the declaration, and admitted to be lost.

5. If the jury shall find from the evidence that the defendant did not endorse either of the said notes offered in evidence, and did not authorize any person to endorse them for him, but that his signature on the back of the same respectively was forged, then the plaintiffs are not entitled to recover in this action, even though the jury may believe that the defendant subsequently admitted his liability upon the said notes, and said he had been fully indemnified on account of the same.

The court granted the first, second, fourth and fifth instructions, but rejected the third instruction. To this ruling of the court, in granting said instructions, as also to its rejection of their third prayer, the plaintiffs excepted, and the verdict and judgment being against them, they appealed.

The cause was argued before BARTOL, C.J., STEWART, MAULSBY, MILLER, ALVEY and ROBINSON, JJ.

Frank H. Stockett, for the appellants.

The Circuit Court erred in excluding the proof taken under the commission, which had been used at the former trial; the testimony so offered was proper and competent; it was taken under a foreign commission in the usual form, not a commission de bene esse, or to perpetuate testimony.

The object of issuing the commission was to procure for the purposes of the trial, and to prevent wrong being done, the testimony of witnesses beyond the jurisdiction of the court, and whose attendance at the trial could not be enforced by the process of the court, and the proof when so taken, in the words of the law, "shall be admitted in evidence at the trial of the cause." Act of 1773, ch. 7, sec. 7 (November Session), Code, Art. 37, sec. 15.

The court has no more power over the witness to compel his attendance at the second trial, than it had at the first, and in very many cases it would be a denial of justice to require the party at every successive trial, to have a new commission for proof and again prove his case over. In many cases this would be impossible, and in all cases it would accumulate costs and cause delays for no good object, which no court will sanction.

Besides, the command of this court is, that the case be proceeded with "as if no trial had taken place." Is that not imperative to the inferior court, to regard the case precisely as if no trial had been--and as if the trial then to be taken, was the first trial?

On the return of the procedendo, the cause stands for trial as if it never had been tried, and at the first term of the court after the receipt of the procedendo; provided, thirty days' notice of trial be given to the opposite party. Code, Art. 5, sec. 16, Act of 1790, ch. 42, sec. 4.

The second exception presents a mixed question of law and fact, part of which might properly be determined by the court, but a portion, if not the whole, should undoubtedly have been left to the jury. Whether there be any evidence or not, is a question for the Judge--whether it is sufficient evidence, is a question for the jury. 1 Greenl. Ev. sec. 49.

The interpretation of the deed in question, and its application to the purpose for which it was offered, were questions for the court; 1 Greenl. Ev. sec. 277, (note 2;) Emory v. Owings, 6 Gill, 199; but whether the deed included the notes in question, or whether the parties to the deed intended to include them, were questions for the jury, to be determined as well from the deed as all the circumstances in the case. Simpson v. Margitson, 12 Jur. 155; Lang v. Gale, 1 M. & S. 111; Hutchinson v. Baker, 5 M. & W. 535; Smith v. Wilson, 3 Barn. & Ad. 728; Jolly v. Young, 1 Esp. 186; Walker v. Hunter, 2 M. Gr. & Sc. 324.

Where a doubt as to the application of the descriptive portion of a deed to external objects arises from a latent ambiguity, and is, therefore, to be solved by parol evidence, the question of fact, as well as of intention, is necessarily to be determined by the jury. Reed v. Proprietors, 8 How. 274; Savignac v. Garrison, 18 How. 136.

The court rejected the deed, not because of any legal insufficiency therein to secure the defendant on account of his liability on the notes in suit, but because the notes sued on were not embraced in the deed. This was purely a matter of fact to be determined by the jury from an examination of the deed, and for which they were as competent as the Judge. It was their province to determine this fact, and it was error to withdraw the consideration of it from them. The deed certainly furnished evidence from which the jury might have found that the notes were included in it. Benson v. Boteler, 2 Gill, 74; tiffany v. Savage, 2 Gill, 129.

The point raised by the third exception was, whether an agreement, regularly made by the attorneys of the parties for the admission of evidence used under that agreement, at the first trial, was of avail to admit the same...