75 Md. 126 | Md. | 1891
delivered the opinion of the Court.
Section 110 of Article IV of the Public Local Laws of the City of Baltimore, sub-title Courts, provides: “Bills of exception may be signed in any cause pending in any of ■said Courts, (the Court of Common Pleas, etc.,) at any time within thirty days from the rendition of the verdict of the jury or the findings of the Court upon the issues of fact in said cause,- but not thereafter, unless the time for signing said bill of exception shall have been previously ■extended by order of Court or by consent of parties.” The motion to dismiss the appeal in this case rests on the contention that the bill of exception wasjnot signed within a period of legal extension by order of Court as required by this law.
On the 23d day of April, 1891, before the expiration ■of thirty days from the date of the verdict, the Court .passed an order extending the time for signing -the bill of exception “to the 23d day of May, 1891;” and on the 23d day of May, 1891, the Court again extended the time for signing the exception to 23d of June, (1891). On the 19th of June, 1891, the Court further extended the time till the 29th of June, inclusive, and on that day it again extended the time until 11th of July; 1891, inclusive. On the 6th of July, 1891, the bill of exception was filed.
The appellee contends that when the order of the 23d day of May, 1891, extending the time for signing the exception until the 23d of June was passed, “the life of the preceding order had expired,” and the Court could not further extend the time. The order of the 23d of April extended the time “to” 23d of May, and whether the ■contention of the appellee is right depends on the proper construction of the word “to” in the connection in which
We are all clearly of opinion that in passing the order of the 23d day of May, 1891, the Court acted within the authority of the statute. Upon that day a bill of exception might properly have heen signed, and if so the time for such signing could properly be extended. That the Court did so extend the time notwithstanding the very ■contention now made here, shows conclusively how the Court understood their own order, and in what sense the word “to” was used in it. It follows from what has heen said that the motion to dismiss must be overruled.
1. This suit was brought by the appellant to recover commissions for selling an ice machine for the appellee. It was brought as an attachment, and this proceeding is on the short note case, the declaration in which is on the common counts, and a special claim for commissions for selling a machine.
The facts of the case are substantially as follows: Frederick W. Wolf, manufacturing ice machines in
• In granting this instruction the learned Judge of the Court of Common Pleas not only erroneously took on himself the functions of the jury, and decided that the claim here sued on and the one withdrawn from the consideration of the jury, by leave of the Court, in the former case, are identical, but was also in error in ruling that claims for which judgment was obtained in the former suit, and the one sued on in this action, “are component items of one entire and indivisible indebtedness.” The claims for which judgment was obtained were for commissions on sales effected by the plaintiff for Frederick W. Wolf, in his individual capacity, and which were assumed by the defendant corporation and recoverable by the plaintiff, who accepted the corporation as paymaster, on the principle of novation. The claim now sued on is for service rendered or commissions earned, as is alleged by the appellant, in making sale of a machine for the corporation. The claims were not indivisible in any sense, for they existed and were due, if due at all, in different rights. If the plaintiff had not accepted the agreement of the corporation to pay instead of Frederick W. Wolf, and thereby released Wolf by actually suing the corporation, he could have sued Wolf individually for what was due from him individually; but he could not have sued Wolf for what the corporation owed the plaintiff. The corporation only Avas ansAverable for that; therefore the corporation could have been sued originally in two suits, one for its own debt and one for the debt of Wolf it had assumed
That which was done in the former suit was done in Killion vs. Wright, 34 Pa. St., 91, and the Supreme Court of that State stated the law applicable to such case so concisely that we quote its language: “Many claims may be joined in one action, and if, for such, separate suits be brought, the Court may order them to be consolidated. But if the claims be counted on separately, they are separate causes of action, and a suit for one is no bar to a suit for another. And as a plaintiff is not hound to count for several claims in one action unless on an order to consolidate, so when he does so count, he may, with leave of the Court, withdraw one of them,
In Wood, et al. vs. Corl, 4 Metcalf, (Mass.) 205, the ndte sued on had once been counted on in a suit which had proceeded to judgment. But before the case was closed this note was, by leave of the Court, withdrawn, and judgment rendered only for another note. Chief Justice Shaw in delivering the opinion on this branch of the case, said: “ This was equivalent to a discontinuance, by leave of the Court, as to this note, and such discontinuance is clearly no bar to another suit for the same cause of action.” Many other authorities might be cited, but we deem others unnecessary, as the law is so clearly stated in those to which we refer.
The granting of the defendant’s prayer necessitated the rejection of all the plaintiff’s jn’ayers, and we must now examine them and see if they are right, as we have found the appellee’s to have been wrong. The first prayer of the appellant appears to us to present his case properly to the jury. We have been cited to no particular infirmity in it, and we see none. It ought to have been granted. The first prayer being granted the second was unnecessary; and if the first had been granted the rejection of the second would not have been condemned. We see no error in the rejection of the third prayer. The first prayer is all that the appellant needed to put his case before the jury for their verdict on the facts as given them in evidence.
The judgment must be reversed, and a new trial must be awarded.
Reversed, and new trial ordered.