Corbin v. Staton

115 A. 23 | Md. | 1921

Certain rulings of the trial court were the occasion for the five bills of exception upon which this appeal was taken.

The appellant and his brother were farmers in Worcester County, and the raising and marketing of potatoes were one of their principal crops. The appellee is the receiver for Howerton Duncan, from whom the appellant and his brother purchased the barrels for shipping their potatoes. The Corbins, Spencer and James, are not sued for the barrels furnished as partners, and probably were not such, although in his testimony Spencer Corbin says, in answer to the question, "You are not in partnership?" "In one sense of the word, we are."

The course of business appears to have been as follows: The barrels were made at the factory of Howerton Duncan under the supervision and direction of J.T. Mariner, who, as the barrels were delivered to customers, made an entry of the number on a calendar sheet, and once a week Miss Howerton would get the sheet and copy, in a book of her own, the number and to whom delivered. What thereafter became of these sheets is not entirely clear. Miss Howerton thinks she sent them to Mr. Duncan, but he does not recall having received them. In this connection Miss Howerton was asked what entries she found on the sheets made out by Mr. Mariner, and this she could only answer from the copy she had made.

This was the occasion for the first bill of exception, as on objection the court permitted her to answer. The third and fourth bills presented practically the same question.

As the sheets kept by Mr. Mariner contained only the number of barrels delivered and to whom delivered, all that could be accomplished by the copy made by Miss Howerton, would be to refresh her memory upon these two points.

In the dissenting opinion filed by Judge Bryan in Owens v.State, 67 Md. 307, he draws the obvious distinction proper to be made between a case where the writings are to go to the jury as evidence of the matters stated in them, and those which can or do only serve to refresh the memory of the witness. The only purpose of the writing in the present case was to refresh the memory, for no prices were entered, and Miss Howerton could not have been expected to testify from memory unaided the number of barrels delivered or the dates of delivery. The case, therefore, falls directly within the rule laid down in Bullock v.Hunter, 44 Md. 416; Bull v. Schuberth, 2 Md. 38; Morris v. Columbia Iron Works, 76 Md. 364; Stallings v.Gottschalk, 77 Md. 429; Lynn v. Cumberland, 77 Md. 449;Billingslea v. Smith, 77 Md. 504; and reaffirmed as recently as the case of Phila., B. W.R. Co. v. Diffendal,109 Md. 494.

The second bill of exceptions was made to admitting in evidence a note book kept by the appellant. These entries were clearly admissible as admissions against interest, and tended to confirm the entries copied by Miss Howerton from Mr. Mariner's sheets.

The fifth bill of exceptions was to the admission of the testimony given on rebuttal as to the delivery of six hundred barrels. This item did not appear either on the account of Miss Howerton, or that kept by Mr. Corbin, and was immaterial, but it is impossible to see how Mr. Corbin was injured by the admission of this testimony.

As no reversible error appears in the ruling of the trial court, the judgment appealed from will be affirmed.

A motion was made to dismiss this appeal, and in view of what has been said it is not strictly necessary to pass upon this, but in addition to this, it clearly appears from the affidavits which have been filed that the failure to transmit the record within the statutory period was the fault of the clerk, and, for that reason as well, the motion should be overruled.

Motion to dismiss appeal overruled, and judgment affirmed withcosts.