Catholic University of America v. Waggaman

32 App. D.C. 307, 1909 U.S. App. LEXIS 6100

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 5, 1909
• Docket: No. 1825
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The appeal is based upon the following assignments of error:

“1. That the court below erred in refusing to allow witness Theodore Cocheu, Jr., expert accountant, who stated the account of Thomas-E. Waggaman, bankrupt, to testify that, in stating the accounts of said Waggaman, he discovered, in connection with the series of notes sued on, another note for $5,000 due by defendant to Thomas E. Waggaman.

“2. That the trial court erred in sustaining the motion of the defendant to instruct the jury to return a verdict for defendant and in so instructing the jury over plaintiff’s objection.”

The consideration of this case may be confined to the second assignment of error. Counsel for defendant attempt to uphold the action of the trial court in taking the case from the jury on two grounds. It is first contended that the burden rested upon the plaintiff to establish that it took these notes before maturity, or, being demand notes, within a reasonable time after their issue. It is insisted that the plaintiff is not such a holder in due course, and that the plea of set-off is a good defense, since the amount claimed as a set-off is greater thaD the amount of the notes. The notes were introduced in evidence by the plaintiff, and the signatures of the defendant and Thomas. E. Waggaman were conceded to be genuine. The notes show an indorsement by Thomas E. Waggaman to the plaintiff without date. They were shown to have been, up to March 10, 1904, in the possession of Thomas E. Waggaman, who was the treasurer of plaintiff, authorized to receive and hold securities for it. The possession of Thomas E. Waggaman, after the date of indorsement was, therefore, the possession of the plaintiff. Upon this state of facts, did the plaintiff discharge the burden resting upon it in this branch of the case? We think it did. With the introduction of the notes bearing the unchallenged signatures of the parties and the undated indorsement, the plaintiff had made such a prima facie case as called for a defense. Section 1849 of the District Code [31 Stat. at L. 1400, chap. 854] provides: “Except where an indorsement bears date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue.” In Collins v. Gilbert, 94 U. S. 753, 24 L. ed. 170, Mr. Justice Clifford, delivering the opinion of the court, said: “Transferees of a negotiable instrument, such as a bill of exchange or promissory note payable subsequent to its date, hold the instrument clothed with the presumption that it was negotiated for value in the usual course of business at the time of its execution, and without notice of any equities between the prior parties to the instrument. Instruments of the kind are commercial paper in thé strictest sense, and must ■ever be regarded as favored instruments as well on account •of their negotiable quality as their universal convenience in mercantile affairs.” Here, the plaintiff made a prima facie •case by the introduction of the notes signed by the defendant. As said in the case of Manistee Nat. Bank v. Seymour, 64 Mich. 72, 31 N. W. 140: “It was not necessary to prove the ■actual consideration in the first instance, because a presumption of fact arises, from the usual'course of dealing in commercial paper, that it was based upon a good consideration; and, in case of indorsed commercial paper, when the indorsee or holder brings suit upon it by proving the signatures of the maker and indorser, a presumption arises that the note is supported by a .good consideration, and that it was indorsed at the date of the note, or, at least, before maturity and before delivery to the holder, which presumption is sufficient prima facie evidence to -authorize a recovery, in case the fact of consideration and of indorsement before maturity is not controverted.” In the case ut bar the plaintiff was entitled to rest upon these presumptions, both as to consideration and indorsement of the notes in question. With the introduction of the notes in evidence, and the admission of the genuineness of the signatures, valuable consideration and indorsement before maturity are presumed. Upon these facts, a prima facie case was made, sufficient to authorize a recovery in the absence of proof by the defendant to the contrary, and no such proof was offered. It is unneces sary for us to pass upon the question whether the defendant could, under any circumstances, assert against the plaintiff the set-off in question, since it arose out of a collateral transaction between defendant and Thomas E. Waggaman after the date he alleges in his answer the notes were indorsed to plaintiff.

A more difficult question is presented in the second ground of defense relied upon by defendant, — the bar of the statute of limitations. It is insisted that, conceding that each successive note included the interest due Thomas E. Waggaman, or paid by him to the plaintiff on the preceding notes, more than three years elapsed between the giving of the last note and the commencement of this action, and, therefore, the entire claim is barred. On the other hand, it is insisted by counsel for plaintiff that the record discloses not only payments of interest on these various notes, with the knowledge and under the direction of the defendant, up to August, 1904, but an acknowledgment ofij the debt by him in his sworn statement filed in the bankruptcy]1 proceedings of Thomas E. Waggaman. The burden rested upon1 the plaintiff of showing either a promise in writing by the defendant to pay the notes made within three years before suit was brought, or an acknowledgment by him in writing within three years of the notes as a subsisting debt, for which he was liable; or a part payment of the principal, or a payment of interest thereon, within three years, by the defendant; or such payment by someone on his behalf, which was either authorized or subsequently ratified by him.

There is great conflict in the decisions of the courts of this-country as to just what is sufficient to constitute such an acknowledgment as will remove the bar of the statute of limitations. In fact, each case must largely depend upon the facts therein disclosed. It would be fruitless to attempt to deduce any exact and uniform rule from the decisions. As said by this court in the case of Bean v. Wheatley, 13 App. D. C. 473: “No set form of words is required to constitute an acknowledgement of the debt. Such acknowledgment may be inferred even from facts or acts, without words of express acknowledgment, as from part payment of the claim, or other clear and definite recognition of the present existence of the debt in suit, 2 Greenl. Ev. sec. 441. And in all cases it is for the court to-determine what kind of promise or acknowledgment is sufficient to remove the bar of the act of limitations, though the evidence-offered to establish such promise or acknowledgment of the debt is required to be submitted to the jury, as in other cases of fact, under the direction of the court.” We are therefore relegated to an investigation of the record in this case to determine whether or not the plaintiff established such a case as would put the defendant upon his proof. In the inquiry to ascertain whether there was such an acknowledgment of this indebtedness by defendant, or ratification by him of the payments of interest by Thomas E. Waggaman between the years 1900 and 1904,. as to remove the bar of the statute of limitations, we think the-voluminous transactions between Thomas E. and John E. Waggaman will throw considerable light upon this subject. We find in the. monthly statements of account appearing in the record, beginning in April, 1897, and continuing up to August 2, 1904,. that the most intimate business relations existed between them. Erom these statements, it is apparent that Thomas E. Waggaman and the defendant were closely associated in extensive business transactions. These monthly statements of account were not confined to charges for payment of interest alone, but involved payments on real estate, payment of obligations in banks, payment of defendant’s portion of amounts due on various pieces of real estate, payment of individual notes made by defendant, payment of notes to banks, made by defendant, payment of taxes for defendant, payment of interest on notes other than the ones here in controversy, and numerous other items tending to show the close business relation existing between them. Similar items to the above appear in almost every monthly statement rendered to the defendant between April 5, 1897, and August, 2, 1904. It is further to be noted that, after December 10, 1900, when the last of the notes here in controversy was given in payment of these accounts, the balance due on each monthly account was carried forward to the account of the next succeeding month, showing, on August 2, 1904, a total balance due Thomas E. Waggaman from the defendant of $69,708.04.

Defendant, in his sworn statement filed in the bankruptcy proceedings of Thomas E. Waggaman setting forth items of indebtedness due him from Thomas E. Waggaman amounting to $267,137.98, states “that there are no set-offs or counterclaims to the same, except that this deponent has heretofore delivered to the said Thomas E. Waggaman a number of notes made by this deponent aggregating eighty-three thousand three hundred and nine and 16-100 ($83,309.16) dollars, which, according to an understanding between this deponent and said Thomas E. Waggaman, were to be held by said Thomas E. Waggaman to indicate such sums of money as the said Thomas E. Waggaman had expended for the use of this deponent. And the said Thomas E. Waggaman also claims from this deponent the sum of $78,343, mainly on account of interest charged against this deponent upon said notes delivered by this deponent to said Thomas E. Waggaman, and also on account of moneys ■claimed by said Thomas E. Waggaman to have been expended for this deponent’s use.” To this statement is attached, and sworn to by defendant a bill of particulars showing the status •of the parties at the date of filing said statement, October 28, 1904. This statement was filed one month subsequent to the date on which he alleges in his answer that he had notice of the indorsement and transfer of these notes to plaintiff. The statement is as follows:

Thos. E. Waggaman in Account with John F. Waggaman.

To bills payable.............................$ 37,000.00

To amount borrowed......................... 80,000.00

To open account............................ 122,925.66-

To amount expended......................... 1,956.25-

To amount due a/c Woodley.................. 25,104.21

To rents retained........................... 151.80

To bills payable.................$ 83,30.9.16

By open account................ 78,343.00

By balance due Jno. F. Waggaman.. 105,485.82

$267,137.98 $267,137.98

It will be observed that defendant states that these notes were given, and the balance of $78,343 incurred, on account of interest charged upon certain notes given to Thomas E. Waggaman and moneys expended by him for defendant’s use. Inasmuch as the item of $83,309.16 constitutes all the notes-appearing in this statement as issued and outstanding from John F. Waggaman to Thomas E. Waggaman, a reasonable inference might be drawn that the notes here in question constituted a large part of this sum; at least, this was a proper matter, in the absence of further explanation, to submit to the jury. If it be true that the notes here in suit were part of the notes set up by defendant as a just set-off, at a time when ho admits that he knew the notes were owned and held by plaintiff, it would seem to constitute such an admission of the debt as would remove the bar of the statute of limitations. In this District (Code, sec. 1271 [31 Stat. at L. 1390, chap. 854]) it is not required, as in some jurisdictions, that there shall be both an acknowledgment of the debt and a promise to pay in writing, to remove the bar of the statute of limitations. The-acknowledgment need not be in any particular form, or contain any particular substance. It is sufficient if the writing be such-that the admission of the debt as a subsisting one, and the willingness to pay, may be reasonably inferred. The acknowledgment need not be express, but may be inferred from the facts or acts of the debtor. It must, however, be distinct, unqualified, and unconditional, and must refer to a present existing debt.

It is well settled that a court will not permit a jury to draw inferences that .are based upon mere presumptions. A jury may only indulge in inferences and presumptions that arise directly from the facts in the case. United States v. Ross, 92 U. S. 281, 23 L. ed. 707. It is proper to inquire what are some of the salient facts of which there is evidence in this record. We think the record clearly discloses that the interest was paid on these notes by Thomas E. Waggaman until August, 3904; that Thomas E. Waggaman continued, until August, 1904, to render monthly accounts to the defendant for the interest due on said notes; that defendant, in his statement in bankruptcy, with full knowledge of the indorsement and transfer of the notes to plaintiff, acknowledged, as a just set-off to his claims against the estate of Thomas E. Waggaman, $78,343 for interest charged against defendant and for moneys expended by Thomas E. Waggaman for defendant’s use; that defendant acknowledged, as a just set-off against his claim in bankruptcy, outstanding notes to Thomas E. Waggaman for the sum of $83,309.16, representing money expended by Thomas E. Waggaman for the use of defendant; that, on April 29, 1903, defendant loaned to Thomas E. Waggaman the sum of $80,000, without taking even a note from him; and that, during all the period covered by these transactions, close and intimate business relations existed between the defendant and Thomas E. Waggaman.

We are of the opinion that this record presents an issue of fact for the jury as to whether or not the item of $83,309.16, acknowledged as a just set-off in the bankruptcy proceedings, embraced the notes here in suit; whether or not the item of $78,343, also acknowledged as a just set-off, embraced the interest paid by Thomas E. Waggaman on these notes; and whether or not from the loan of $80,000, together with the other facts disclosed by the record showing the intimate business relations existing between defendant and Thomas E. Waggaman, defendant, knowing of the transfer of these notes to plaintiff, authorized or ratified the payment of the interesI. thereon. An answer to these vitally important questions is essential in order to determine whether or not defendant, knowing that plaintiff was the owner of the notes, acknowledged in his affidavit in bankruptcy the debt represented by the notes here in suit as a valid subsisting debt which he was willing to pay, and whether or not he, at the same time, ratified the payment of the interest by Thomas E. Waggaman.

In this case the indorser of the notes, Thomas E. Waggaman, is dead. The person who could throw the most light upon these transactions is the defendant. All the facts that would tend to unveil the mysterious relations between Thomas E. and John E. Waggaman are under the control of the defendant. While we recognize the rule that it is incumbent upon the plaintiff to establish a prima facie case by affirmative evidence before the defendant can be put upon his proof, yet, where the plaintiff has established a state of facts from which the jury can draw reasonable inferences tending to sustain the contention of the plaintiff, it is error for the court to dispense with the services of the jury. Especially is this true where the evidence of the defendant must, of necessity, be such as to illuminate the issues and assist the jury in arriving at a proper and just verdict.

The courts of review in this country are applying with increasing strictness the rules limiting the right of the trial judge to invade the province of the jury. This court, in the case of Glaria v. Washington Southern R. Co. 30 App. D. C. 559, said: “A motion to direct a verdict is an admission of every fact in evidence, and of every inference reasonably deducible therefrom. And the motion can be granted only when but one reasonable view can be taken of the evidence and the conclusions therefrom, and that view is utterly opposed to the plaintiff’s right to recover in the case.” The rule more generally' followed is that “it is only where all reasonable men can draw but one inference from tbe undisputed facts that the question to be determined is one of law for the court.” These narrow restrictions apply where the court has before it the whole case. Even less latitude is allowed where the jury are peremptorily instructed at the conclusion of the plaintiff’s affirmative case than where such an instruction is given when all the evidence of the parties is before the court.

Upon the whole, we are convinced that there is sufficient in this record to put the defendant upon his. proof, and that it was error to instruct the jury peremptorily to return a verdict for the defendant. The judgment is reversed, with costs and a new trial ordered. Reversed.