Green v. Ford

35 Md. 82 | Md. | 1872

Stewart, J.,

delivered the opinion of the Court.

In this case the appellant excepts to the rejection by the Court below of the prayer offered by him; also to the granting of the appellee’s second prayer; to the verbal instructions of the Court, that there was no evidence in the case to bind the appellee as a principal,,and that the verdict must accordingly be for the defendant; also to the refusal of the Court to permit a witness to be re-called for the purpose of stating what his testimony had been.

There was no dispute as to the sale of the goods by the appellant, and their delivery at the restaurant described as the “New Place,” belonging to the appellee.

The question to be determined was, whether the appellee was in truth the original debtor, and as such responsible for the payment of the bill as furnished upon his credit, or had he merely collaterally undertaken to pay the debt of other parties in the event of their failure to pay.

Considerable testimony to sustain the appellant’s theory of the case, that the goods were furnished upon the credit of the appellee, had been offered to the jury, and the evidence of the appellee was introduced to support his defence.

The following is a summary of the same:

The appellant himself stated that he delivei’ed the goods charged, at the New Place; that the appellee promised that the bill should be paid; that he had sold the goods to one Flinders, who was then in the place in some capacity; that it was his impression that the appellee was the owner of the establishment; that he would not have sold the goods to Flinders and Sandford alone.

Medinger, another witness, testified that he sold goods to the same restaurant upon the credit of the appellee.

John A. Good, another witness, states it was hard to tell who was the proprietor of the restaurant.

Charles E. Flinders, another witness, testifies that he had charge of the New Place sometime in 1867, and left in 1869, (during which time the bill of the appellee was furnished to the place;) that he was at the same time in the employ of the appellee as barkeeper at the Holliday Street Theatre; that he had charge of the “New Place” under an arrangement with the appellee and on his invitation; that the appellee told him he did not want him to take charge of the entire establishment, but only of the bar; that one Sandford had charge of the eating department; that he paid no rent for the place; that he gave some $2,800 received from the business to Sandford, at the request of the appellee; that all he got out of the place was his board; that he received a salary of $20 per week from the appellee for his services as barkeeper at Holliday Street Theatre, but that he never received any salary from the New Place; that he bought all the goods for the Theatre bar and also for the New Place.

The appellee, testifying in his own behalf, stated that he was the owner of the building in which the “New Place” was kept; that he spoke to Sandford and Flinders about taking the place, and told them he would not take any rent until he could see what they would be able to pay; that they conducted the business with ill-success; that he had promised to pay some of the bills incurred by Sandford and Flinders, and did pay all such bills by special arrangement with ti e creditors so- paid; that he never shared any of the profits of the concern; that he had seen the plaintiff almost daily, and he had never spoken to him concerning his bill; that the plaintiff never asked him concerning his responsibility before the bill was incurred.

From the tenor of the evidence we think the appellant ought not to have been denied the right to have it weighed and considered by the jury, without undertaking upon our part to say what might be the effect upon their minds.

Unless the evidence had been so slight and inconclusive as to preclude the jury from forming any rational conclusion therefrom, and we do not esteem it of such character, it ought to have been submitted to them.

However unsatisfactory it may have appeared to the mind of the Court, yet if the jury could reasonably have reached a different conclusion, it should have been considered by them. Whilst it is the prerogative of the Court to decide upon the competency and admissibility of evidence, it is the province of the jury to determine its weight and credibility. The Court should not take the case from the consideration of the jury, unless the evidence is so trivial as to admit of no rational conclusion therefrom, applicable to the issue before them.

Unquestionably there was uncertainty as to what party, under the circumstances testified to, was responsible for the goods furnished the “Hew Place,” but if the jury, from the facts in evidence, had found a verdict for the appellant in the absence of the instructions of the Court, there would have been no valid ground for setting the verdict aside and to have granted a new trial upon motion therefor, because there had been no sufficient evidence to warrant it.

(Decided 16th January, 1872.)

If the Court would have refused a new tl’ial under such circumstances, it ought not to take the case from the consideration of the jury, upon the ground that no sufficient evidence had been introduced.

“ The Court never withdraw the testimony from the consideration of the jury but where they would set aside any verdict founded upon its assumed sufficiency.” Cole vs. Hebb, 7 G. & J., -il.

We think the verbal instructions of the Court below, “that there was no evidence in the case to bind the defendant Ford, as a principal debtor, and that their verdict must be for the defendant, should not have been given.

The prayer of the appellant was properly refused. It is too indefinite in its terms, and states too broadly the grounds upon which the legal liability of a party arises in a case like the present.

The agreement of the appellee to pay the bill of the appellant, as testified to by him, referred tb in the appellee’s second prayer, might, in the minds of the jury, have afforded an. inference as to the appellee’s liability as the original debtor.

It was the province of the jury to interpret its tendency, and if they considered it as applicable to an original liability of the appellee, it was admissible in evidence for that purpose. If, on the contrary, the jury considered the promise of the appellee as made to pay the debt of another party, in order to bind him by such promise, it was necessary it should have been in writing. Therefore this second prayer as presented, in which the Court decided as to the effect of the agreement, ought not to have been granted.

The exception to the refusal of the Court to re-call the witness for the purpose of stating what his testimony was, if it had been taken in due form, is not the subject of an appeal, but is a matter to be determined by the sound discretion of the Court below.

Judgment reversed and

new trial ordered.