The Democratic advocate. [volume] (Westminster, Md.) 1865-1972, 1883-03-24
Kagel vs.. TOtteu-OpiniOn of the Court
Of AspnealS.


This case was taken to the Court of APP
peals from the Circuit Court of this county,
where the defendant (Wm. I. Kagel pray
ers were all refused, and those of the plaintiff
Mortimer C.. Totem were granted. The
foundation of this action, says the court,
was promissory note for $3.50, dated 10th OF
November, 1879, payable six months after
date to H. K White & Co., or bearer, and
payable at the Union National Bank Of West
minister.
Following are the prayers offered by the
plaintiff ;:ld defendant:
PLAINTIFFS PRAYER.
Thatthe defendant has given no legally sutfi-
cient proof, from which the jury can find in this
case, that the note sued on was obtained from
defendant in any manner sufficient to relieve
him from the payment thereof to the plaintiff
in this action, with interest from its maturity.
DEFENDANTS PRAYERS.
If the jury shall find that the paper sued
on in this case was never delivered by the de-
PENDANT as a note, then their verdict should
be for the defendant.
If the jury shall find that the paper sued
on in this case was not signed by the defendant
as a note, nor intended by him to be deliv-
cred as note, then the plaintiff cannot re-
cover therein against the defendant IN this
suit.
6 That before the plaintiff can recover in this
suit, on the paper sued on, they must be sat
isfed that the defendant signed said paper,
and was aware, at the time of so signing the
same, or possessed opportunities such as a
reasonably cautious man would have exer-
csed of knowing that he was executing a
note for the payment of $3.50, in favor of H..
X. White & Co., or bearer, as represented by
said paper.
That the plaintiff is not entitled to recover
on the paper sued on, even though the jury
may find that the name of the defendant is
appended or subscribed thereto, i'll his, de-
PENDANTS own handwriting; if they further
find his said signature was procured thereto
surreptitiously and by fraud, and with an I'M
derstauding, at the time, had with the payee,
or their agent, that he was signing contract
of agency for the sale of washing machines.
of which II. X. White & Co., of st. Louis,
Missouri, were the manufacturers and propri-
etors.
If the jury shall find that on the both day
of November, 1879, a certain j. H. Miller
came to the house of the defendant, repre-
senting himself as agent Of a certain firm or
company, in the city of ST. Louis, Missouri,
of the name of II. X. White 4 Co., who We're
manufacturers and proprietors of style OF
washing machines, known as the white
washer;'' and that said Miller further repre-
scented himself as engaged by said company,
to obtain agents for the sale Of said ma
chimes, and that he induced. and the de-
PENDANT finally agreed to become such agent,
and to that end signed the contract offered
in evidence. which was retained by him,
if the jury so find, and that Immediately
after his signing said contract, the said
Miller began filling in another contract SINH
lar in form and printed language to the one
so signed by him, as aforesaid, and offered in
evidence, and stated to defendant, that he
must sign another contract, so he could hand
it over to the company, to show his agency,
and shall find that the defendant, in intending
to sign the last mentioned contract, signed the
paper sued on. then the verdict must be for
defendant.
The Court of Appeals, Judge 1ellott de,
livering the opinion, said:
There was error not only in the granting
of the plaintiff S prayer, but in the rejection
of the defendant 4th, 5th 9th, 18th and Sth
prayers, which are in consonance with the
principles enunciated in the recent case OF
Totten vs. Buoy, in 81 Nd, which case SO
closely resembles the one now under consid-
Grafton that the failure of identity is barely
perceptible.
The Judgment an0s.lhl from will be re-
versed, and new trial awarded.