McCosker & Molloy v. Banks
McCosker & Molloy v. Banks
Opinion of the Court
delivered the opinion of the Court.
This case is before us for the second time. The former appeal is reported in 82 Md.- 518. As presented now, the record contains six bills of exception. One of these relates to the admissibility of evidence, and the others to rulings of the Circuit Court for Prince George’s County in rejecting five prayers presented by the plaintiffs for instructions to the jury. The prayers having all been submitted at the same time and forming a series of consecutive propositions, the ruling of the Court upon them was a single act and not five separate and distinct decisions; and, consequently, one exception if properly taken and executed would have been sufficient to embrace the whole. Ellicott v. Martin, &c., 6 Md. 517. The practice of embodying each prayer in a separate exception though it prevailed half a century ago has long since been abandoned as one that served no useful purpose.
The action is in assumpsit. The plaintiffs, who are the appellants, sued in their firm name and style as partners. They declared on a promissory note made by the defendants, the appellees, and payable to one P. O’Brien or order and by him endorsed to them ; and they added the common money counts. The defendants pleaded that they never promised as alleged; that the note sued on was procured
The plaintiffs offered evidence tending to prove their co-partnership, the signatures to the note sued on, its nonpayment and the indorsement of it by O’Brien and there rested. The defendants then gave testimony designed to show that the note was procured by the fraud of O’Brien, the payee, and in rebuttal Molloy, one of the plaintiffs, was placed upon the stand, and testified that he had no knowledge of any fraud practiced by O’Brien in the obtention of the note. He was then asked whether or not the firm of McCosker and Molloy were aware of any fraud practiced by O’Brien in the obtention of the note. To the admissibility of this question the defendants objected, but the Court permitted the witness to answer, reserving the right to rule the answer out. The witness replied that the firm of McCosker and Molloy were not aware-of any fraud in the obtention of the note. Thereupon the defendants asked the Court to strike out the answer so given, and this the Court did, and the plaintiffs excepted. This ruling is the one complained of in the first bill of exceptions.
It will be observed that the question sought to elicit from the witness an answer as to whether the firm of McCosker and Molloy had knowledge of the alleged fraud on the part of O’Brien in the obtention of the note, and that the - answer actually given and subsequently stricken out was that the firm had no such knowledge. The word firm is equivalent to partnership and signifies the name under which any house of trade is established or conducts business; but a firm is not a being or entity distinct from the individuals who compose it. Knowledge or ignorance of a firm must consequently
The first, third, fourth and fifth prayers were properly rejected. They all direct a verdict for the plaintiffs without leaving to the jury to find whether the plaintiffs were partners. The issue was raised by the pleadings as to whether the plaintiffs were partners. This threw upon them the burden of proof and whilst they adduced a witness to establish the affirmative, the credibility of that witness was solely for the jury. They had the right to disbelieve him and no action of the Court could lawfully restrict the exer
The second prayer as offered was rejected, but as amended by the Court, was granted. As offered, it asked the Court to say to the jury that if they found that the note sued on was obtained by fraud, practiced by O’Brien, the plaintiffs would still be entitled to recover, if the jury believed the note was acquired by the plaintiffs by indorsement for value before maturity, without notice of any fraud practiced by O’Brien ; but the Court amended it by adding these words : “ and the burden of proof is upon the plaintiffs to show that they had no knowledge of the fraud.” There can be no question as to the correctness of the instruction as granted. Through a series of cases, beginning with Totten v. Bucy, 57 Md. 452, and followed by Crampton v. Perkins, 65 Md. 22; Williams v. Huntington, 68 Md. 590; Griffith v. Shipley, 74 Md. 591; Cover v. Myers, 75 Md. 406, and Banks v. McCosker and Molloy, 82 Md. 518; the law of Maryland on this subject has been consistently declared. In an action against the maker of a negotiable note, the indorsee “ has nothing to do in the opening of his case but to prove the signature to the instrument and introduce it in evidence; for the instrument goes to the jury, with the legal presumption that the plaintiff became the holder of the same for value at its date, or before maturity, in the usual course of business, without notice of anything to impeach his title. Fie is at liberty to rest upon this presumption, and is not bound, in the first instance, to show the circumstances under which he obtained the note, or that he paid
There being no errors in the rulings excepted to, the judgment appealed from will be affirmed.
Judgment affirmed, with costs above and below.
Reference
- Full Case Name
- McCOSKER & MOLLOY v. JOHN T. C. BANKS and Wife
- Cited By
- 20 cases
- Status
- Published
- Syllabus
- Bills of Exceptions—Promissory Note Procured by Fraud—Knowledge of Fraud by Endorsee—Burden of Proof to show Good Faith—Proof of Want of Notice by a Firm—Notice to one Partner— When Existence of Partnership to be Found by the fury. Where a number of prayers for instructions to the jury are submitted to the trial Court at the same time, the ruling of the Court upon them is a single act, and only one bill of exception should be taken. Where in an action on a promissory note by a partnership composed of two persons, who were the endorsees of the note, the defendant gave testimony showing that the note was obtained by the fraud of the payee, it is not competent to prove that the plaintiffs took the note in good faith by the testimony of one of the plaintiffs that the firm was not aware of any fraud practised by the payee in obtaining the note. While one member of a firm may be ignorant of defects in the origin of a promissory note, another member of the firm may have full knowledge of such defects, and sincé this knowledge of one would be sufficient to charge all with notice, the ignorance of one partner cannot be treated as the ignorance of the others. Whenever it becomes necessary for a partnership to show that they acquired a promissory note by endorsement,, in good faith, without knowledge or notice of its original infirmities, such want of knowledge must be shown as to all the partners ; and as one partner cannot give evidence that his co-partner was ignorant of a particular fact, except by testifying to the co-partner’s declaration, which would be inadmissible, it follows that each partner must show his want of knowledge by his own testimony, or that other facts must be submitted to the jury from which the absence of such knowledge may be legitimately inferred. In an action by a firm the defendant specially denied in his pleadings that a partnership existed between the plaintiffs. Held, that prayers which do not leave it to the jury to find whether the plaintiffs are partners or not are defective. When in an action by the holder of a promissory note against the maker the defendant shows that the note was procured by the fraud of the payee, the burden of proof is shifted, and it is then incumbent upon the plaintiff to show that he or some preceding endorser took the note in good faith for value before maturity, and without knowledge or notice of the fraud.