On the face of the papers contained in the record, the right of
the plaintiff below to recover is clear.
Conversations between two makers of a note in the absence of the
payee and without his knowledge are not binding upon him, and are
not admissible in evidence against him in an action to recover on
the note.
A party cannot, by merely filing with the clerk an affidavit not
incorporated
Page 166 U. S. 277
in any bill of exceptions, bring into the record evidence of
what took place at the trial.
The errors alleged were frivolous, and the writ of error was
sued out for delay, for which, in affirming the judgment, ten
percent damages are allowed under clause 2 of Rule 23.
On June 3, 1892, the defendant in error commenced suit in the
district court of the Fourth Judicial District of the Territory of
Utah for the County of Weber upon a promissory note, of which the
following is a copy:
"$6,700 Salt Lake City, Utah,
April 3, 1891"
"On or before the 23rd day of April, 1892, without grace, for
value received, we, or either of us, promise to pay to the order of
Richard Flint sixty-seven hundred dollars, negotiable and payable
at Ogden, Utah, without defalcation or discount, with interest at
the rate of ten percent per annum from date until paid, both before
and after judgment."
"Interest payable semiannually."
"Alfred H. Nelson"
"Frank J. Cannon"
"A. H. Cannon"
The original answer denied that plaintiff was the owner or
holder of the note, and alleged generally that it was made without
consideration, and that plaintiff wrongfully obtained possession
thereof. Subsequently an amendment was filed which stated that the
plaintiff had been, since about June 19, 1889, the holder and owner
of two promissory notes signed by the defendants Nelson and Frank
J. Cannon, amounting to $6,700; that he offered to surrender those
notes and waive all claim for interest if the makers of those notes
would furnish him a new note signed by them and their codefendant
in this case, A. H. Cannon; that, in reliance upon such agreement,
the note sued upon was signed and the plaintiff obtained possession
of it upon a promise to return the old notes, which he had failed
to do. This amended answer was met by, in substance, a general
denial. Upon a trial before the court, a jury a verdict and
judgment were returned and entered in favor of the plaintiff for
the full amount of the note and interest. This judgment was
thereafter affirmed by the supreme court of the territory, to
reverse which latter judgment of affirmance a writ of error was
sued out from this Court.
Page 166 U. S. 278
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
On the face of the paper, the right of the plaintiff to recover
is clear. The record does not contain the entire testimony offered
on the trial. It cannot therefore be said, even if this Court were
at liberty to examine the testimony, that it was not amply
sufficient to sustain the verdict and judgment.
It is alleged that the trial court erred in ruling out evidence
of a conversation between Frank J. Cannon and A. H. Cannon in the
absence of the plaintiff -- a conversation which it was claimed
induced A. H. Cannon to sign the note. The mere statement of the
proposition carries its own answer. Conversations between two
makers of a note in the absence of the payee are clearly not
binding upon the latter. No representations, true or false, made by
one maker of a note to another, no secret understanding between
such markers, no inducements offered by one to the other, affect
the validity of the instrument in the hands of the payee unless he
knew or was chargeable with notice of such facts. The vital
question is not what passed between the makers by themselves, but
what passed between the payee and any one of the makers.
It is also alleged that there was error in refusing to permit
evidence as to certain collateral security which it is claimed
should have been exhausted before an action could be maintained on
the note. It is a sufficient reply to this contention that there is
no suggestion in the answer of any collateral
Page 166 U. S. 279
security, and the court properly refused to consider any
defenses not so presented.
A final matter is this: Frank J. Cannon testified that when he
handed this note to plaintiff, the latter promised to return the
two original notes of $3,200 and $3,500, respectively, amounting in
the aggregate to $6,700, which he then held; that he failed to do
so, or to cancel such prior notes. The bill of exceptions states
that the defendants asked the following instruction:
"If you find that Flint took the note in suit under the
representations that he would return it the following day or cancel
the old notes, then you must find a verdict for defendants."
Upon which the court made this minute:
"Not handed in until after the instruction had been given."
"This request was not given the court until after the court had
instructed the jury; therefore refused."
The instructions which were given are not copied in the record,
nor is there anything in the bill of exceptions showing how long
after the court had finished its charge to the jury this
instruction was asked. It is true that there appears in the
transcript, as printed, this affidavit of counsel:
"A. R. Heywood, on oath, says: I handed above request for
instruction to judge immediately on his ceasing his own charge to
jury, and on his refusal, I took on the margin an exception to his
refusal."
But no such affidavit can be considered by this Court. A party
cannot, by merely filing with the clerk an affidavit, not
incorporated in any bill of exceptions, bring into the record
evidence of what took place or the trial. So that, upon the record,
as properly prepared, we can only consider the question whether
error can be adjudged in a refusal by the trial court to give an
instruction presented at any time after it has finished its charge,
and when it does not appear that the same matter has not already
been fully and satisfactorily explained to the jury. Obviously but
one answer can be given to this question. It cannot be that after
the court has finished its charge, after perhaps the jury have
retired to consider of their verdict, and at any time before such
verdict is returned,
Page 166 U. S. 280
a party can hand up an instruction to the court and demand as of
right that it shall be given to the jury, and then, if the court
fails to recall the jury and give such instruction, and it embodies
a proposition apparently correct, the judgment must be set aside
without any showing as to what the charge of the court really was,
or that it did not cover the matter contained in this instruction
asked at such late time. It is unnecessary to consider whether the
proposition of law as stated therein was correct or not. It is
enough to hold that, so far as this record discloses the time and
manner in which this instruction was presented, it does not
affirmatively appear that it was presented under such circumstances
as to demand consideration on the part of the court.
These are all the questions presented. We see no error in the
record, and must affirm the judgment.
The defendant in error (plaintiff below) asks this Court to add
ten percent damages on the ground of the frivolousness of the
errors alleged, and because the suing out of the writ of error was
for delay. Under clause 2 of Rule 23 of this Court, we think this
application should be granted. The judgment is affirmed, with costs
and ten percent damages.
