Bullitt v. Musgrave

3 Gill 31 | Md. | 1845

Archer, C. J.,

delivered the opinion of tiiis court.

The exceptions in this case are on the part of the defendant. The first has reference to the admissibility of evidence.

The plaintiff offered to read in evidence a commission returned on the 22nd of August 1843; but the defendant objected to all such parts of it as went to show that Musgrave, by his fanning of the land leased by the defendant’s father to him, benefitted it for tire defendant, or his fatiier. By die depositions of several witnesses taken under this commission, it was proved, that the farming of the land had been so conducted as to benefit the defendant. This constituted the portion of the evidence sought to be excluded.

The action was in assumpsit, and was brought to recover the amount of an award, signed by arbitrators on the 29th of November 1841: the defence to this action consisted of evidence offered on the part of the defendant, to show that the claim on. the award was compromised and released by a,n agreement, entered into between the parties in Virginia, inMay 1842. And the defendant, for the purpose of inducing the jury to believe that such arrangement as was insisted upon by him had been made, offered proof, without objection, that the plaintiff had cut upon the demised premises between 1838 and the spring of 1841, and sold off the premises wood to the value of from $2000 to $2750. The defendant deemed the proof of a claim to damages for trespass, in cutting the wood to so great an amount as $2000 or $2700, as important to show that it was improbable claims to such an extent, over and beyond his claims for rent, would be compromised for so inconsiderable a sum as that for which judgment had been entered. Whether lilis evidence was admissible or not, we are not called upon to determinej but the evidence objected to is wholly inadmissible, unless upon some ground it could be considered as an answer to the alleged trespass in cutting the wood: for whether the land had been well tilled or not, or had been cultivated so as to benefit the defendant, were not questions in issue before the jury. No claim could be set up by the lessee for voluntarily farming the land in a more beneficial manner than the lease required. Nor could the evidence, upon any view of it, be considered as furnishing any answer to the alleged trespass. It could not have any tendency to diminish, or mitigate the damages. We, therefore, think the testimony objected to was wholly inadmissible, and that it should, consequently have been rejected by the court.

It has been urged by the appellant, that the court below not only decided the evidence objected to by him, to be admissible, but that all the evidence taken under the commission was admissible, and proceeding on this assumption, various objections have been urged to different portions of the evidence. But we have not considered the court below as deciding any other question than the specific question raised, and which we have examined. The court, it is trae, did permit the whole of the evidence to be read to the jury, after disposing of the particular objection raised, and this it was their duty to do, as no other objection was taken than that which has been adverted to. It was not the duty of the court to point out objections to the admissibility of other portions of the evidence taken under the commission, but they might well await the action of the complainant in relation, thereto, and if no other objection was urged, the court only performed their duty, in allowing the commission, and the evidence taken under it, to have been read to the jury. Since the act of 1825, ch. 117, no point can be insisted upon by the appellant which was not raised in the court below, and we cannot act on a question which shall not appear to have been presented to the county court. Believing the only point decided by the county court, to have been the question raised on the particular evidence objected to, we cannot entertain the appeal in relation to the objections urged to other portions of the evidence, taken under the commission.

The plaintiff, in the second bill of exceptions, prayed the court’s opinion to the jury, that if the juiy believe the evidence of the plaintiff’s witness, George Moore, in relation to the agreement of reference, also given in evidence, and executed by the plaintiff, and George Moore & Co., dated 29th Nov. 1841;; and the report and award made under said reference, also dated 29th Nov. 1841; and if they believe the said reference and' report, and award was made, as stated by the said witness, Moore, that then the plaintiff is entitled to recover the amount of such award, unless the jury shall also find from the evidence' in the case, that afterwards it was agreed by, and between the' plaintiff and defendant, that the amount so due to the plaintiffs, in virtue of said reference and award, should be considered as-compromised, and released by the arrangement made in Virginia in May 1842, mentioned in the evidence of the witness,. Jno. W. Tyler, and fire other witnesses, testifying in regard to-said arrangement, under the commission to Virginia.

There are fatal objections to the instruction prayed. Facts are assumed which should have been submitted to the jury. Thus, (he question of notice, was a fact to be found by the jury. There was abundant evidence to show notice; but the prayer is not put on the hypothesis of notice, and no matter what the jury might believe on the subject of notice, they would have been bound by the instruction granted, to have found for the plaintiff, if they believed the evidence of Moore, in relation to the reference, report, and award, provided they further believed that no compromise had been made, as mentioned in the instruction.

The nature of the enquiry by the arbitrators, was such as to render notice necessary. By the agreement between the parties, of the 16th of August 1836, Musgrave had liberty to remove such materials as he might supply towards the buildings, other than those from the woods of Bullitt, so far as it could be done without exposure of, or injury to the materials towards the said buildings, obtained out of the woods of the said Bullitt. It was the purchase of these materials by the one, and the sale by the other, which was the object of the reference. Had notice been given, it is fair to presume, that evidence might have been adduced, to show that injury might arise from the removal of some of the materials furnished, within the meaning and terms of the contract. At all events, the judgment of the arbitrators might have been influenced or enlightened, by the adduction of evidence on the part of the defendant.

It was, moreover, a question of fact to be determined by the jury, whether matters had not been awarded upon, which had not been submitted by the parties, for, if such matters had been included in the award, which could not be separated from the matters referred, the award would be inoperative and void, unless indeed what had been done by the arbitrators, had after-wards been ratified by the party, to be affected by such award.

There was evidence that buildings had been erected on Stony Point by Musgrave, and the award finds for repairs on the Stony Point shore.

The reference agreed upon was to value the property on the Opossum Nose Fishery only; and if repairs were valued, which had been put up on Stony Point Fishery, such repairs were not within the submission. It is true this enquiry would be immaterial, if, after the appraisement had been made, the defendant had ratified the same. But the instruction does not require the jury to enquire into the fact, whether there had been a subsequent ratification of the award, in case of any excess; hut the jury are instructed to find the amount of the award, if they believe the evidence of Moore in relation to the reference and award, and if they believe the reference, report, and award were made, as stated by Moore. Now this instruction is silent as to any evidence in relation to the endorsement on the award signed by Musgrave and Moore Sf Co.; and if that had been put to the jury, on their belief of the evidence of Moore on that subject, still it would not follow, that the jury must find the amount of the award for the plaintiff, for Moore does not prove any communication with Bullitt in relation to such ratification, or that any power was imparted to him otherwise than by the original power. He does not directly prove his authority, but only states that, what he did, he considered he was doing, as agent of Bullitt, the defendant. It was but his opinion, which to besure, had been admitted as evidence to the jury, without objection; and if the jury had believed he had truly stated his belief, it still was not imperative upon them as to the fact, whether authority had been imparted to him by Bullitt to ratify the award.

But in addition to the above objections to the instruction given by the court below, there is another which, to our minds, is conclusive. The award is rvholly uncertain, and therefore void; and if all other objections were waived, it could not furnish the basis of the instruction granted. The design of Bullitt was to purchase, and Musgrave, to sell the materials, which, by the terms of the lease, the latter had the right to remove. If the sum awarded, the purchase money, is to be paid, it should sufficiently appear what were the articles appraised, so that the vendee might obtain a title. In this respect, we consider the award uncertain; certain articles are particularized, but some are not, but are included under an et cetera. These terms must mean something, but what, can only be left to conjecture. The parties ought not to be left to speculation; and we could not sanction an award so indefinite.

We consider these questions as all necessarily raised by the prayer offered., and must presume they were brought to the attention of the court below.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.