Carey v. Merryman

| Md. | Mar 1, 1877

Geasost, J.,

delivered the opinion of the Court.

The first exception was taken to the refusal of the Court below, to incorporate in a bill of exceptions tendered by the appellants, certain evidence which they allege was not admissible, and to the admission of which they assert they had objected.

The refusal of the Court to sign and seal a hill of exceptions, or to incorporate therein certain evidence, cannot be reversed by this Court upon a bill of exceptions taken to such refusal, unless the refusal of the Court below is based upon its opinion that such evidence is irrelevant. A party feeling himself aggrieved by such refusal, must resort to a different proceeding to have the error, if it be one, corrected. Marsh, et al. vs. Hand, 35 Md., 124. But if the first bill of exceptions were properly before us, we should have no hesitation in affirming the rulings of the Judge of the Baltimore City Court, for the reasons assigned by him for not signing the bill of exceptions tendered by the appellants’ counsel, or inserting therein the evidence which their counsel requested to be incorporated in it.

The second exception was taken to the granting of the appellees’ five prayers and the refusal of the Court to grant the first, second, second B, and fourth prayers of the appellants, their third having been granted and their fifth and sixth conceded.

In the argument in this Court the counsel of the appellants admitted the correctness of the rulings of the Baltimore City Court, upon their first and fourth prayers, as also upon all the prayers of the appellees except the first and second, and abandoned their exception so far as they were concerned. But it was insisted that the Court erred in rejecting their second and second B prayers, and in granting the first and second of the appellees.

The second prayer B, it was admitted, was offered as an amendment of their second prayer. These prayers asked an instruction that, if the jury should find the facts therein stated, then the defendants were bound to pay for the bricks only such sum as the jury should find them to be worth to the defendants, unless the jury should further find that they agreed to take bricks of the color and quality actually sent by the plaintiffs, in place of those originally agreed upon, and unless the jury should further find that the defendants accepted said goods from the plaintiffs under the further instructions of the Court. To what instructions the jury were thus referred, whether to those granted at the instance of the appellees or to those of the appellants, which were granted and conceded, it was impossible for them to know. These prayers were calculated by this uncertainty to confuse and mislead the jury, and were for this reason properly rejected.

It is contended that the appellees’ first and second prayers are in direct conflict with the appellants’ fifth prayer, which being conceded, was the law governing the case. Haney vs. Marshall, 9 Md., 215 ; Balto. & Ohio R. R. Co. vs. Blocher, 27 Md., 286; Cooper vs. Utterback, 37 Md., 314.

If there be such conflict, therefore, the judgment appealed from cannot stand.

The record shows that the plaintiffs offered proof at the trial that they had sold and delivered to the defendants all the bricks charged for in their bill of particulars, at the prices therein charged, and then the defendants offered evidence tending to prove that certain of the long arch brick charged for in said bill were of bad quality, so that they could not be cut, and were in great part spoilt in the fitting, and that Crangle, the plaintiffs’ foreman, agreed on behalf of the plaintiffs, that only such of the same as were used should be paid for, and that a much larger number were charged for than were used. The plaintiffs then offered rebutting evidence to prove that the defendants had contracted to select the bricks themselves, and did select them, and that the bricks so selected by them were delivered by the plaintiffs, and that the fronts of the houses had been injured by the bricklayers inserting bricks intended for one story of the houses in another. In this state of the proof, the plaintiffs’ first prayer was granted, instructing the jury that if they should find from the evidence that the plaintiffs paid and furnished to the defendants, at their request, the money and bricks charged in the bill of particulars, and that said bricks were furnished at the prices agreed upon between the parties to the suit, then their verdict must be for the plaintiffs for such amounts, if any, as the jury should find to be due to plaintiffs on the bill, with interest in their discretion.

Their second prayer instructed the jury that they should find for them under their first prayer, and should find that the bricks charged to defendants were delivered on the premises, or at such points as defendants directed, then their verdict must be for the plaintiffs, even if they should find the bricks were not used by the defendants; provided the jury should further find that the bricks furnished were the same bricks purchased by them of the plaintiffs. The appellants’ fifth prayer, which was conceded, instructs the jury that they may deduct from the amount charged for long arch brick, in the bill of particulars, the amount of such brick, if any, which they may find from the evidence not to have been actually used by the appellants, provided they shall find from the evidence that the plaintiffs’ foreman, Mr. Crangle, agreed with the appellants that they should pay only for such long arch brick as they actually used, and that Crangle was authorized by the appellees to make such agreement. In other words, the_ appellees’ first and second prayers stated as a general proposition, that, if the jury should find the sale and delivery of the bricks, charged in the bill of particulars, at the prices agreed upon by the parties, the appellees were entitled to recover, notwithstanding the bricks were not used, while the appellants’ conceded fifth prayer instructed the jury that, if they should find a special agreement, from the evidence, that the appellants were not to be charged for such of the long arch brick as were not used, then the amount of such long arch brick as were not used, might be deducted by the jury from the amount charged in the bill of particulars. We think it clear that this instruction, which the appellees conceded to he correct, is not inconsistent or in conflict with the appellants’ first and second prayers, but is nothing more than a modification of them. The three instructions taken together tell the jury, that if they believe the bricks charged were sold and delivered at prices agreed on by the parties, the appellees are entitled to recover, although the bricks were not used, but if they should further find that there was a special agreement between the parties, that only such long arch brick as w ere used were to be paid for by the appellants, then the jury may deduct from the bill such long arch brick as they may find were not used. We think the language used by this Court in the case of First National Bank vs. Jaggers, 31 Md., 51, especially applicable to the prayers in this case, which are said to be inconsistent and in conflict with each other. It was there said, with respect to prayers which were alleged to be in conflict with each other, “If the jury, had been told the one instruction was a modification of the other, no objection could have been taken; and such, we think, was in this case, the substantial effect of granting both. It is to be presumed the jury was possessed of ordinary intelligence, .and they must therefore, have regarded the instruction asked,” (in this case conceded,) “as a modification” of the appellees’ first and second prayers.

(Decided 1st March, 1877.)

Finding no error in the rulings of the Judge of Baltimore City Court, the judgment appealed from will be affirmed.

Judgment affirmed.