21 Md. 524 | Md. | 1864
Lead Opinion
delivered the opinion of this Court:
This case was argued in connection with the case of Oelrichs & Lurman vs. Ford, and involves some of the same questions decided in the other case.
At the trial six bills of exceptions were taken by the apappellants, who were defendants below. Of these, the first, third, fourth and fifth, present the same points as the first, second, third and fourth exceptions in Ford’s case, and for the reasons stated in the opinion therein filed, the rulings of the Superior Court on these exceptions will be affirmed.
The second exception. The tender of 500 barrels of flour in pursuance of the contract in this case, was made to the defendants, on behalf of the plaintiffs, by the witness John H. Fowler, the clerk of Fowler & Zeigler, in whose warehouse the flour then was. In answer to the question of the plaintiffs,.if he knew the flour tendered to be the plaintiffs’ flour, said, ‘ ‘he did not know any thing of it himself, but was informed by Mr. Fowler, of the firm of Fowler & Zeigler, that it was the plaintiffs’ flour, and was told to fender it as such,” and to the admission of this statement
The objection made to this testimony by the appellants in tbe argument, was that the declarations of Mr. Fowler were mere hearsay, and, if the fact was material, it ought to have boon proved by Mr. Fowler himself. And further, that it was material to prove" that the flour tendered belonged to the plaintiffs, or was under their control and subject to their order. Fowler was a stranger to the contract, and had no right to offer to perform it on the plaintiffs’ part, unless by their authority.
These objections are well taken, and would be fatal if this evidence stood alone. But it appears from the same bill of exceptions, that on the 26th, 28th, 29th and 30th of January 1856, a tender was made of the Hour on behalf of the plaintiffs by their attorneys, to Mr. Frick; the attorney of the defendants, to whom they had been referred by the defendants. That the Hour tendered was stated to be in tbe warehouse of Fowler & Eeigler. And that Mr. Frick on each occasion declined and refused to accept the flour on behalf of the defendants, on the ground that the contract was at an end. This was a waiver of any further tender, and the testimony of John IT. Fowler, was immaterial, could do no injury to the defendants, ami its admission, a majority of the Court think, is no ground for a reversal of the judgment.
The sixth exception was taken to the refusal by tbe Court to grant an instruction tv) the jury, asked for by the defendants, declaring Joseph Newcomer to be a necessary party plaintiff. This prayer was based upon the testimony of Newcomer, to the effect that the plaintiffs had agreed to let him have an interest in the contract. This agreement was made after the contract had been made by Bell with the defendants, and reported to the plaintiffs by Bell.
The right of the plaintiffs to sue, grows out of the fact that the contract was made, on their behalf, by Bell as their agent. The action is brought upon the contract of
Dissenting Opinion
dissented, and delivered the following opinion :
The exceptions peculiar to this case, are the second and sixth.
J ohm H. Fowler, a witness sworn on the part of the plaintiffs, and clerk of Fowler & Zeigler, having proved that, by the instruction of his employees, he had tendered on behalf of the plaintiffs to the defendants’ attorney, to whom he had been referred by them, 500 barrels of flour, and that at the time of said tender Fowler & Zeigler had from 2000 to 3000 barrels of said flour in their warehouse, and the same was refused, was asked by the plaintiffs if he knew the flour tendered to be the plaintiffs’ flour, to which he replied he did not know any thing about it himself, but he was informed by Mr. Fowler, of the firm of Fowler & Zeigler, that it was the plaintiffs’ flour, and was told by him to tender it as such; to the admissibility of which evidence of the statements of Mr. Fowler, of the firm of Fowler & Zeigler, the defendants objected, and the Court overruled their objection, and permitted the same to go to the jury, which, constitutes the second exception. The appellees argue that whether the flour actually belonged to the plaintiffs or not was of no importance, provided it was at their- disposal, that this evidence was admissible, as a part of the verbal instructions given by Fowler & Zeigler to their clerk, when. directed to make the tender. “Their statement was properly admitted as showing that they made no claim to the flour, but held it as the plaintiffs’ property; if they had made the tender in writing, this is the first thing probably that they would have said, and in
This action sounding in damages, it was most material that the plaintiff should show, he was in. good faith, prepared to comply with the contract at the time of the tender. If he had in fact no flour in the city to deliver, but had to go into the market and purchase, or pay a commission to another house to tender flour for him, the evidence of those facts was of the utmost importance in weighing the amount of damages to which he was entitled.
Although it was competent for Messrs. Fowler & Zeigler to instruct their clerk to make a tender, in a particular name and right, yet, when the question was not whether he, the clerk, received such instructions,'but whether the fact implied in Ms instructions was true, and the clerk declared his ignorance of their real nature, the admission of the declaration or statement of his principal, as evidence of the fact, was certainly substituting secondary for primary proof, without any of the legal reasons for such admission.
The 6th exception was taken to the refusal of the Court to grant the defendants’ prayer, that if the jury find from the evidence, that the plaintiffs, at the time of the institution of the suit were interested with Joseph Newcomer in the contract given in evidence, the said Newcomer is a necessary party to the same, and therefore the plaintiffs are not entitled' to recover. The evidence on which this prayer was based, was not, in onr judgment, sufficient to sustain it. Newcomer’s testimony, which alone disclosed his interest in the contract, did not show any such legal interest as would entitle him to a right of action, either separately or jointly. There was ño consideration for the promise of Artz to let him have an interest in the contract, and no agreement to assign any part of the contract, which could he enforced.
Judgment affirmed.