201 Md. 138 | Md. | 1952
delivered the opinion of the Court.
This is an appeal from an order (a) directing payment to petitioner Lightbown of $265.20 paid into the registry of the court pursuant to a decree of August 2, 1949, (b) allowing a counsel fee of $150.00 to the trustee under the decree for legal services to himself as trustee in opposing an application for certiorari in the Supreme Court of the United States, and (c) sustaining demurrers to, or dismissing, or both sustaining demurrers to and dismissing, sundry nondescript answers and petitions of appellants, mentioned by name in the order but not set out in either brief or appendix.
This case originated in a bill of one Turover against appellants and a Mrs. Leapley and husband (both now deceased) for specific performance of a contract of sale of land by the Leapleys to Turover effected by exercise of a written option from the Leapleys obtained by Turover, through Lightbown as a real estate broker, before sale of the same property at the same price, $5,304 less commissions, by the Leapleys to appellants. The court, by its decree of August 2, 1949, granted specific performance against appellants, as purchasers with notice of Turover’s prior equity. This court affirimed. Blondell v. Turover, 195 Md. 251, 72 A. 2d 697.
Turover’s option agreement provided, “If sale is consummated as a result of this option, seller agrees to pay Edward N. Lightbown 5% commission in cash at the time of settlement.” Lightbown, though not a party, was the principal witness in the original case. The facts stated in the opinion of this court indicate that the option contract was procured by Lightbown. The decree of August 2, 1949 directed appellants to execute
After affirmance of the decree, we are informed (though none of the proceedings is before us) that appellants and others filed in the United States District Court a bill against Lightbown, Orem, and Orem, trustee, for injunction against conveyance of the property pursuant to the decree. After dismissal of this bill for want of jurisdiction, another was filed, dismissed on similar grounds, and on appeal to the United States Court of Appeals the dismissal was affirmed. Later application to the Supreme Court for certiorari was made and was denied, Louk v. Friedman, 342 U. S. 827, 72 S. Ct. 51. Meanwhile this case had been referred to an auditor, counsel fees had been allowed for services in the federal court litigation (except the
In February, 1952 Lightbown filed his petition for payment to him of the $265.20 paid into the registry of the court pursuant to the decree of August 2, 1949. After the sundry proceedings above referred to, the order now under review was signed on March 27, 1952. It is not clear why in the decree of August 2, 1949 the $265.20 was not ordered paid to Lightbown, in view of Lightbown’s testimony in the original casé. Nor is it clear why, in view of the provision for further proceedings, Lightbown was asked by his counsel only whether he was the Lightbown mentioned in the option agreement, and whether he had been paid any commission arising out of the option agreement or the sale to Turover or by or on behalf of either of the Leapleys. However, as the court, counsel and litigants well knew, in the original case to which the instant proceedings are supplemental, Lightbown’s testimony had shown, as the opinion of this court indicates, that he had procured the option agreement and the resulting sale. Moreover in the instant proceedings he was asked, on cross-examination, “You stated to the court that you brought about the signing of this option. Is that true?”, and he answered, “'That is true.”
By “answers and petitions” appellants separately alleged that Lightbown’s testimony at the original trial was “evasive, inconclusive, untrue and incomplete”, that since the decree of August 2, 1949, they had “come into possession of conclusive evidence that said testimony of * * * Lightbown was perjured”, and prayed a hearing on Lightbown’s petition and that appellants “be given opportunity to advance proofs in open court in substantiation of the facts herein sworn on oath.” Apparently appellants’ major objective in the maze of their proceedings in response to Lightbown’s petition was to
The same notion of setting aside the original decree is the basis of appellants’ contention that the court would not permit them to cross-examine Lightbown. No question is presented as to the English or the American rule as to scope of cross-examination. Nowhere may a witness be asked, on cross-examination or at any other stage, the color of his eyes — or the color of his testimony in a previous case — for the sole purpose of calling another witness to contradict him, unless in some way the color of his eyes, or his previous testimony, is material in the instant proceedings. The few questions of fact material in the instant proceedings were those that were asked Lightbown and answered, viz., whether he procured the option agreement and the sale and whether he had been paid. The court properly cut off attempts to prove his original testimony “perjured”.
Order affirmed, with costs.