7 Md. 215 | Md. | 1854
delivered the opinion of this court.
After veidict the appellants filed a motion for a new trial, stating they did so, without “waiving their exceptions.” The court heard and considered the motion, but overruled it. The same day on which this decision was made, the appellants filed a motion in arresl of judgment, which, however, was subsequently withdrawn, without, having been acted upon by the court.
The appellee insists, that this appeal should be dismissed, Because the reasons assigned why a new trial should be granted involved questions of law, which were presented in the bills-
In 6 How., 283, United States vs. Hodge, et al., the Supreme court say, “The motion for a new trial was not a waiver of a writ of error. In some of the circuits, there is a rule of court to this effect. But effect could be given to that rule only by requiring a party to waive on the record a writ of error, before his motion for a new trial is heard. In the greater part of the circuits no such rule exists. It does not appear to have been adopted in Louisiana.”
In Mitchell vs. Mitchell, 11 G. & J., 389, the county court refused to entertain a motion for a new trial, unless the party would abandon her exceptions, which being refused, the court declined to entertain the motion.
After verdict in favor of the caveatees, in Townsend vs. Townsend, 9 Gill, 517, the caveators moved the court to set aside the verdict and grant a new trial. Among the reasons assigned, the 4th alleged error in the court, for excluding from the jury proof of the declarations of Walter B. C. Worthington, one of the witnesses to the will. The question as to the admissibility of this proof, was presented by the caveators’ bill of exceptions. The court overruled the motion. When the- case was under argument upon the appeal of 'the- caveators, the-counsel.forthe appellees contended, “That the motion for a new trial, and especially upon the ground covered by the bill of exceptions, was a waiver of said bill of exceptions.” In the opinion of the court nothing is said on this subject: but it is perfectly clear that they did not adopt the view of the appellees ;,for if they had the appeal must have been dismissed. Instead'of which the decision below was-reversed,
The decisions on this matter of practice have not been entirely uniform: but the cases referred to we deem sufficient to warrant, the conclusion, that in Maryland, when the same questions are presented in the bill of exceptions, and in the application for a new trial, the court below have the right, and in general ought, to require the party to waive his exceptions, before they will entertain the motion. If, however, the motion is heard and decided, but it does not appear that the party was required to make such waiver, the appellate tribunal will nevertheless, entertain the appeal. See 9 Porter’s Rep., (Ala.,) 110, West vs. Cunningham.
The motion to dismiss is overruled.
The two notes mentioned in the first exception, and offered in evidence by the plaintiff, were objected to by the garninishees, but the court refused to sustain the objection, and this refusal constitutes the first exception.
At -the time of making the oath, for the purpose of obtaining the attachment, the plaintiff produced an account of sundry items of goods sold and delivered, as his claim, on which the alleged absconding debtor was indebted. The short note filed in the cause, is for goods sold and delivered; for money lent and advanced to, and paid, laid out and expended for the defendant; and for money had and received by the defendant for the use of the plaintiff. Although the .witness Alnutt, in his examination-in-chief, stated the account was correct, yet, upon cross-examination, it appeared that he did not sell the goods, but as book-keeper he made out such account in his books from information derived from the other clerks. But upon further examination by the plaintiff, the witness “stated that he had been in the habit of obtaining from the
The objection urged against the admissibility of these notes is, that an account was produced before the magistrate, as the claim on which the debtor was indebted, and the notes not having been produced at that time, they cannot now be used as evidence, in support of the plaintiff’s claim; especially in the absence of other legal proof to establish the correctness of the account.
It is admitted by the counsel for the appellants, and properly so, that if A., sells goods to B., which are regularly charged to him in the ordinary course of business, and subsequently a promissory note is given by B., for the amount of the claim, after the note falls due, A., may maintain an action upon the account notwithstanding the note. And it is also conceded, that if A. has a claim for money had and received for his use, by B., who gives a note for the same, the note will be sufficient evidence to sustain an action by A., upon the common count, for money had and received. But it is said, although these principles apply to ordinary cases of actions in assumpsit, they are not applicable to attachments,
We do not understand the plaintiff as relying upon either note as his cause of action, or as evidence, per se, of the correctness of the account; but that they were offered in connection with the other proof as evidence of the defendant’s acknowledgment, that a portion of the account was correctly due. At all events they were admissible in that view, and as the particular object for which they were offered is not stated in the bill of exceptions, we cannot reverse the decision which admitted the proof.
This decision is said to be erroneous for a further reason, which is thus stated: (being the 2nd point of the appellants:) “The said evidence was likewise inadmissible, being contrary to the account filed with the attachment. The proof establishes, that $241.61 was due on the 13th of September 1850, and continued due until the attachment issued, there being no evidence of any other indebtedness at or between' those periods. The account shows the payment of $498.40, on October 5th, 1850, which was more than double the amount proven'to be then due, and of course showed an extinguishment of indebtedness prior to suit brought.” We do not see how we can sustain this point, even if the question presented by it is to be considered as properly before us. It is evidently a mere question of fact. It assumes, the proof estab
There are several' objections to the point. One is, that it is inconsistent in its different parts. For if it be true, “the proof establishes that $241.61 was due on the 13th of September 1850, and continued due until the attachment issued it will be difficult to perceive how it can be true that the payment of $498.40 on 5th of October, showed an extinguishment of all indebtedness prior to suit brought, which was on the 21st of the same month. Moreover, we are not prepared to say, that this payment left no part of the account due at the date of the attachment, when the witness, Alnutt, has sworn that the portion of the account then due was $241.61. And this we understand as having been sworn to by him, with a knowledge that the credit of $498.40 was upon the account! That he knew it, is at least a fair presumption,, because he stated, “that the account annexed to the affidavit, warrant and attachment, was correct.” In this reference to the testimony of Alnutt, we are not to be understood as considering him competent to speak of the correctness of the account, or of the amount due thereon, from any knowledge on. the subject, which, as book-keeper, he derived from the other clerks. But we think his testimony in regard to the portion of the account due at the time of issuing the attachment, is entitled to consideration as evidence properly in the cause, under the circumstances stated by him, in reference to his habit of presenting to the defendant the account at different times, and obtaining from him his notes for previous purchases: the note for $498.40 being one of them ; for the balance of which the note of $241.61 was given.
It will be recollected, the appellants contend' that the payment of $498.40", on the 5th of ©ctobér, was an extinguishment of all indebtedness prior to the institution of the suit, because the evidence does not show any other indebtedness than the $241.61 between the 13th of September and 21st of October. To sustain the correctness of this position we must come to the conclusion * that notwithstanding the embarrassed condition of the debtor, notwithstanding he was compelled from want of funds to ask indulgence for a month on account of' the balance due in a few days upon á note, nevertheless, before the expiration of that month,- hé paid not only that balance to the plaintiff, but double the amount for which he liad any right fo demand payment. And in addition to- this, the only evidence of the payment of $498.40 is the credit of that sum on the account, whilst a credit of the 16th of September shows a payment of $258. Now if the appellants are' right in insisting there was nothing due between the 13th of September and the institution of the suit, except the $241.61,' then that sum was extinguished, indeed overpaid, by (he payment of $258, and the necessary consequence is, that notwithstariding the serious embarrassments under which' Wolf was laboring, he paid the $498.40 when not a cent thereof was due.
But supposing these objections to the second point of the appellants should be deemed insufficient, there is another,which, in our opinion, is conclusive.
Dawson vs. Brown establishes the principle, that the plaintiff in attachment may recover a less sum than the amount sworn to by him before the justice.
The second bill of exceptions shows, that the garnishees had given evidence of a sale of the goods in controversy to William F. Lee, as their agent, by J. H. Merritt, as clerk and agent of Wolf. It therefore became a matter of some importance to them to show, that Merritt had authority to make the sale. He,-as a witness for the appellants, stated, “ that when said Wolf left the city, his instructions to the witness had always been, to go on with his (Wolf’s,) business-as if it'were witness’ own.” It then appears, that “The garnishees, for the purpose of showing by particular facts the general scope of the authority under which said Merritt acted habitually on behalf of said Wolf, then asked him whether said Wolf was ever absent from the city? to which the witness replied, that he frequently was, having stores both in Washington and in parts
The court, we think, were right, because the question is a leading one, according to the definition of a leading question in 1 Greenlf. on Ev., sec. 434, where he describes it as embodying a material fact, and admitting of an answer by a simple negative or affirmative. The present inquiry did present a material fact, and might very well have been answered by the witness by simply saying, I was, or, I was not. And the course of the examination shows, very clearly, the witness could have no difficulty in knowing what answer he was desired to give. In 2 Phillipp’s Ev., 401, (Ed. of 1849,) it is said: “Leading questions, that is, such as instruct a witness how to answer on material points, are not allowed in the examination-in-chief.” And in note 366, on page 769 of the 4th volume, this subject is treated of more at length, where cases are cited in which questions have been held improper, as being in conflict with this principle. It is there said to-be a mistake “ to suppose such only is a leading question to which yes or no would be a conclusive answer.”
There are cases, even.in a direct examination, where leading questions may be permitted; as, “where the witness- appears to be hostile to the party producing him-or in-the interest of the 'other.party, or unwilling to give evidence, or where an-omission in his testimony is evidently caused by want of recollection-, which a suggestion may assist.” And in 1 Greenlf. on Ev., sec. 435, other instances, in addition to these, are given, -but in our opinion the principles involved in them do not sanction the propriety of the question before us.
From the third exception it-appears, Wolf returned to Baltimore on the 19th of October, and had an interview with-Merritt at his house, when Merritt stated to him the particulars of the settlement with Lee and Brewster, detailed in the testi
For the purpose of showing a ratification by Wolf of the conduct of Merritt, and further illustrating the general scope of the authority tinder which Merritt habitually acted for Wolf, the garnishees proved by him, that, after the period when the store in Baltimore was shut up and closed, the witness continued in Wolf’s employment, at his request, and was sent to Virginia to his stores there. And then the garnishees “ offered to prove that the witness, within the week following the transaction with Lee and Brewster, settled the claims of several other creditors of said Wolf in the same manner in which he had with said Lee and Brewster, and that said Wolf approved of and confirmed the same.” To which the plaintiff objected as being evidence of matters subsequent to the attachment, and the court sustained the objection.
Merritt is represented as salesman and confidential clerk of Wolf, in his retail store in Baltimore. There can be do doubt that the principal may, if he pleases, confer on such a clerk full power to make a sale like the one in controversy. But in the ordinary and usual course of business, “a clerk in a retail store has no authority to sell by wholesale in payment of a debt due, and certainly not in payment of a debt not due.” Hampton. et al., vs. Matthews & Shaw, 14 Penn. State Rep., 108. In that case the court say: “It is obvious, that if a clerk has authority to apply any quantity of goods he may choose to the payment of a debt not due, he has power, in many cases, materially to injure, if not totally to destroy, his employer.” See also Beals vs. Allen, 18 Johns. Rep., 366.
To establish the right of Lee and Brewster to the property, either Merritt must have possessed authority to make the sale, or else it was necessary that it should have been ratified by Wolf before the attachment was levied.
The offered testimony being for the purpose of showing a ratification of the sale, and further illustrating the general scope of the authority under which Merritt habitually acted for Wolf,
Prior to the transaction with the agent of Lee and Brewster, no similar sale appears to have been made, but the business in the store up to that time had been going on as usual. It took two days to accomplish the sale, which was finished and the goods delivered on Thursday or Friday night. And on the following Saturday morning, (the 19th of October,) at 7 o’clock, Merritt informed Wolf of the sale. That transaction did not close the store, but it was opened for business as usual on Saturday morning. Afterwards, on the same day, it was closed by other parties under attachments, of which Wolf was informed that night, about 10 o’clock, by Merritt. Within the week following, the transactions between this clerk and other creditors took place, which were approved of by Wolf, and were offered in evidence but rejected.
There is a rule of evidence which excludes collateral facts, or such as do not afford a reasonable presumption or inference as to the principal fact or matter in dispute. And the reason of the rule, as given in 1 Greenlf. on Ev., 70, sec. 52, is, “ That such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rebut it.” He gives several instances in exemplification of the rule, among which, one is, that “Where the question between landlord
We do not, however, sustain the action of the court simply upon the ground, that the facts offered were collateral or because they were subsequent to the attachment, but because they took place, not in the ordinary course of business, but under circumstances very different from those existing at the time of the occurrence of (he principal matter, and therefore they are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute.
We do not think the appellants are entitled to a reversal upon the ground taken in their sixth point.
Judgment affirmed.