Cousins v. Partridge
Before: McFarland
Synopsis
Promissory Note — Consideration—Attorney and Client—Appeal— Review of Evidence. — When there is strong evidence to show that a note was given by a client to his attorney, and that there was a consideration therefor, the mere fact that the relation of attorney and client existed, and that the claim ought to be looked upon with suspicion, will not warrant the appellate court in saying that a verdict sustaining the note was not justified by the evidence.
Trial—Instructions—Reading Case to Jury.—It is not ground of reversal for the court to read to the jury the opinion of the court of appeals of New York in a somewhat similar ease, if the opinion contained a correct statement of the law, and was applicable to the case; though such practice is, perhaps, not to he commended.
Instructions — Taking Question from Jury. — WTien the instructions taken together are correct, and submit every question to the jury, it is not ground of reversal that one of the instructions speaks of a particular question as “just about the only one to be determined”; it appearing from the other instructions that another question in the ease was fully discussed, and correctly submitted to the jury.
Trial — Order of Proof—Opening Case — Discretion. —It is in the discretion of the court to allow plaintiff to introduce testimony after defendant has closed his evidence.
Id.—Remarks of Court — Appeal — Error not Excepted to.—Remarks of the court made during.the trial about the immateriality of certain evidence which was admitted, cannot be reviewed on appeal, if not excepted to when made.
Negotiable Paper—Note Payable on Demand—Apparent Maturity — Demand. —The payee of a demand note may sue the maker without any demand other than that made by the suit itself. Section 3135 of the Civil Code, in relation to the apparent maturity of a demand note, relates only to cases where a demand is necessary to charge an indorser, and is intended to fix the limits of a reasonable time for that purpose, and not to alter the rule declared in section 3130 of the Civil Code, that it is not necessary to make a demand of payment upon the principal debtor in a negotiable instrument in order to charge him.
Estates of Deceased Persons—Presentation of Claims—Pleading.— A complaint sufficiently averring in other respects the due presentation of a written claim for the amount due upon a note of a decedent to the administratrix of his estate for allowance is not subject to general demurrer because alleging that the claim was supported by the affidavit of the claimant, “as required by the statute in such cases made and provided.”
McFarland, J. This is an action on a promissory note alleged to have been made by Louis G. Partridge, deceased, on February 19,1885, for two thousand dollars, payable to plaintiff on demand after date. The answer [227]denies that the note was ever made or delivered by the deceased to plaintiff, or that there was “ any consideration for the said promissory note.” The case was tried without a jury, and the verdict and judgment were for plaintiff. Defendant appeals from the judgment, and from an order denying a new trial.
1. Appellant contends strenuously that the evidence is insufficient to justify the jury in finding that the deceased made the note, or that there was any consideration for it; but if it could be rightfully said, in the language of appellant’s counsel, that “it is difficult to avoid looking upon the claim of Mr. Cousins in this connection without suspicion,” that at least is all that could be rightfully said on the subject. There certainly was strong evidence tending to show both the making of the note and the consideration, and we cannot say that the verdict is not justified by the evidence, and that, notwithstanding the fact that plaintiff and the deceased held the relation toward each other of attorney and client.
2. Appellant contends that the court, when charging the jury, erred in reading part of the opinion of the court of appeals of the state of New York in a certain case decided in that court. Reading from the opinion of another court when instructing a jury is, perhaps, not a practice to be commended; but as the part of the decision read in the case at bar appears to be a correct statement of the law, and applicable to the case before the jury, we do not see how the practice in this particular case affords a ground for a reversal of the judgment. All that the court told the jury, before reading the extract from the opinion, was, that “it was a case somewhat similar to this.”
3. Appellant objects to the charge of the court, because in one place the jury are told that the execution of the note “ is just about the only question for you to determine,”—the argument being that this language took away from the jury the question whether or not there [228]was any consideration for it. But in the next sentence the court says: “The first and principal question for you to determine is, Was this promissory note signed by Louis G. Partridge in his lifetime, and if so, was there any consideration for it?” and afterward the question of consideration is fully discussed. The jury, therefore, could not have been misguided in the matter complained of. And we think that the instructions on the subject of consideration were correct.
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