Summary
error to the oohrt of common pleas of warren COUNTY.
No. 310 January Term 1889, Sup. Ct.; court below, No. 46 December Term 1887, C. P.
On October 27, 1887, the First National Bank of Warren brought assumpsit against O. C. Allen, to recover on a note made by the defendant dated November 5, 1886, for $5,000, payable at three months at the First National Bank bf Warren, to the order of Beecher & Copeland, and by Beecher & Copeland indorsed. The defendant pleaded, non-assumpsit.
At the trial on October 5,1888, the plaintiff proved the note, put it in evidence, and rested.
The defendant, O. C. Allen, was then called in his own behalf, and testified that on a certain date in 1884, he saw Mr. Beecher, the cashier of the plaintiff bank, at the Warren post-office, the witness then being postmaster:
Q. What did he come to see you about ?
Defendant’s counsel proposes to prove, by the witness, that on November 5, 1884, Mr. Beecher called on the defendant, at the post-office in Warren, and informed him, in substance, that the First National Bank of Warren was carrying for the film ■of Beecher & Copeland a quantity of oil certificates, in excess, .as he stated, of what they were permitted to carry for one firm under the laws of the United States, and that the bank desired to have that oil divided up among other parties, or carried in the name of other parties, so as to make an appearance of compliance with the law; and for that purpose he asked the defendant to become a maker of a note for $5,000, to be secured by 5000 barrels of the oil that the bank was carrying for Beecher & Copeland; and in compliance with this request, and without other consideration, Mr. Allen executed the note and delivered it to Mr. Beecher, and it was placed in the bank, with the oil as its collateral security, with the express agree,ment that Mr. Allen should not be liable for the note; to be followed by evidence that this note is the second or third renewal of that note, and with the same conditions and considerations, and with the same agreement that there should be no liability on the part of Mr. Allen.
Objected to, because there is no authority shown or offered to be shown in the cashier to make any such agreement for the bank; and that the agreement proposed to be shown would not be binding upon the bank, in any event; that the agreement is not within the ordinary powers of the cashier to make, and no special authority is proposed to be shown; that such an agreement, if made by due authority of all the directors, would be void as against the stockholders, being in fraud of their rights; and that the whole evidence does not tend to show any legal defence to the note in suit, and is therefore incompetent and irrelevant; also, that the evidence proposed to be given tends to defeat and destroy a written instrument by verbal testimony, and is therefore incompetent.
Defendant’s counsel adds to the proposition as follows: To be followed also by evidence, that at the date of said agreement the plaintiff bank held the obligation of Beecher & Copeland for said $5,000, secured by said oil certificates, and still holds said obligation and oil certificates.
Plaintiff’s counsel objects to the offer as amended, for the reason that the whole evidence offered to be given does not tend to establish a defence on the part of this defendant; the contract or agreement not having been made with the bank by any officer authorized to make it, because there is no authority offered to be shown in the cashier to make such an agreement, and that the same was not within his ordinary powers, as cashier; that the agreement itself, if made for the bank and by due authority, would be void under the circumstances stated, and would not avail as a defence to the defendant; and that the evidence is incompetent, as tending to contradict the written instrument upon which the suit is brought.
Objection sustained, offer refused; exception.1
Defendant proposes to prove by this witness, and others, that the note offered in evidence by the plaintiff, was given for an antecedent debt of Beecher & Copeland to the said bank, and was without consideration; to be followed by evidence that the plaintiff bank, in this case, paid no consideration for said note.
Objected to, as incompetent and irrelevant, in this issue; the proposition itself showing that the note was given upon a good consideration, that is to say, the antecedent debt of Beecher & Copeland.
Objection sustained, offer refused; exception.8
Defendant proposes to prove by this witness and others, that the plaintiff bank, had, previous to the making by defendant of the note of which the note in this case is a renewal, discounted paper for Beecher & Copeland, for an amount of more than one tenth part of the capital stock of said bank, and had in that manner violated § 5200, Revised Statutes of the United States; and that the original note given by the defendant, as well as all the renewals of the same, and including the note offered by the plaintiff in this case, was given without consideration, and for the express purpose of deceiving the bank examiner as to the true condition of said plaintiff bank, and to avoid the consequences of the violation of said United States laws. The purpose of the offer is to show that the note in question was given for the purpose of screening the bank from the violation of the law which they had committed in that respect, and was illegal and void.
Objected to, as incompetent and irrelevant, because the facts stated would not avail as a defence in this case, as against the bank.
Objection sustained, offer refused; exception.3
Defendant offers in evidence the propositions above made, as one proposition, to be followed by evidence that the original note was given about November, 1884, and renewed from time to time under the same agreement under which the first note, of which the note in question was a renewal, was made, to wit: that it was for the purpose of deceiving the bank examiner as to the violation of said United States laws, and with the express agreement that there should be no liability whatever on the part of said defendant, O. C. Allen; this for the purpose of showing acquiescence and ratification in this arrangement by the bank, of the agreement.
Objected to, for the reasons given in the objections to the first offer made by the defendant.
Objection sustained, offer refused; exception.4
M. Beecher, called for defendant, testified that he was the cashier of the plaintiff bank, and was a member of the firm of Beecher & Copeland; that the first note signed by defendant Allen, of which the note in suit was a renewal note, was given September 9,1884. An offer to show by this witness the facts set out in the preceding offers being refused, the witness was then examined as to the number and dates of the renewals of the note of September 9, 1884, and the discounts charged on each, his testimony showing that the discounts had not exceeded the rate of 6 per cent.
The court, Brown, P. J., charged the jury as follows:
The coart assumes the responsibility of determining this case, for the present, at least.
The plaintiff requests us to say to you, that there is no sufficient evidence that any interest in excess of the legal rate was ever taken, charged, received or reserved by the plaintiff upon the note in suit, or any previous note of the defendant of which it is a renewal, and the verdict should be for the plaintiff for the amount of the note with legal interest from its maturity.
Answer: This point is affirmed.6
We say to you, Pie case depends upon certain questions of law, that we desire, inasmuch as the matter is important to both sides, to more fully examine; and we take the responsibility, so far as you are concerned, of instructing you that the verdict should be for the plaintiff for the amount of the note, with the interest to this date.5
The jury returned a verdict for the plaintiff for $5,580.83. A rule for a new trial having been discharged, the defendant took this writ, assigning as error:
1-4. The refusal of defendant’s offers.110 4
5. The direction to find for the plaintiff.5
6. The answer to the plaintiff’s point.6
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
