Low v. Warden

Thornton, J. This is an action on a promissory note. The complaint averred the execution of the note, and that it had been sold and assigned to the plaintiff by the payees, “ D. Low and Brother,” and that plaintiff was the "owner and holder thereof.

The defendant by his answer admitted the execution of the note, but denied every other allegation of the complaint.

The plaintiff’s counsel proved by oral testimony that on December 10,1880, defendant was indebted to D. Low and Brother in the sum of $762 on his promissory note to them; that on that day he paid them $400, and gave to them a new note for $362. A copy of this new note, on which this action was brought, is set forth in the complaint. Plaintiff further proved that no part of this note had been paid. He did not then offer the note, which it appears was in his possession. The defendant moved for a nonsuit on the ground that the note on which the suit was brought had not been offered in evidence. Plaintiff was then allowed by the court to offer the note in evidence. When it was offered, the defendant objected to its introduction on the ground, among others, that the note was not properly indorsed. It does not appear that the indorsement was at that time offered,— nor was the attention of the court called to it,— though it subsequently appeared that the note had written on the back of it, “D. Low and Brother.” The plaintiff rested without any proof of the indorsement.

The defendant then moved for a nonsuit on the. ground that there was no proof of the indorsement of the note. The plaintiff’s counsel contended that no such proof was necessary. The court, after hearing argument, intimated th-fi t. proof of the indorsement was necessary. Upon this, [21]plaintiff’s counsel asked leave to open the case and introduce testimony concerning the indorsement. This the court refused to allow, and granted the motion for a nonsuit, to which rulings plaintiff excepted.

We are of opinion that justice to the plaintiff demanded of the court that he should have been allowed to introduce testimony to prove the indorsement. The views of plaintiff’s counsel in regard to the questions presented were novel and peculiar, and the course pursued by him singular, but we do not think that this justified the court in refusing to allow the plaintiff to prove that the note had been indorsed to him. The request was simply to prove the handwriting of the payees of the note. It was not an offer to prove something which rested in parol merely, as to which a wider discretion in granting or refusing it might be conceded to the court below.