69 Md. 293 | Md. | 1888
Lead Opinion
delivered the opinion of the Court.
The Court ordered this case to be re-argued, and a majority of the Judges who heard the re-argument are of opinion the judgment should be affirmed.
The plaintiff having proved the execution of the note, the defendants then offered in evidence a contract for the sale of the wood, which was in writing and dated the 26th of February, 1886. By this contract Sentman agreed to sell to Gamble and Logan “all the wood” (with the exception of certain rails and posts already cut, and the chestnut timber fit to make rails and posts) which he, Sentman, had purchased from T. Snowden Thomas, by agreement dated the 22d of February, 1886, “said tract of woodland lying north of the east and west road connecting the road from Bay View to North East with that from Bay Yiew to Charlestown,'except a few acres on the west of the. Bay View and Charles-town road, adjoining the land of S. P. Maffitt, for the sum of 8300.” By reference to the contract between Sentman and Thomas, which was also in writing, and was afterwards offered in evidence by the plaintiff, we find the same description of the tract except that the words “said Thomas’ tract of woodland, part of ‘Russell’s Union’ ” are used. So far as the description of boundaries is concerned the two contracts are identical. In neither of them is any boundary definitely described except the road referred to, and in neither of them is any mention made of the eastern boundary, separating the lands of Thomas from those of McDaniel.
Having offered this contract in evidence, Gamble, one of the defendants, testified that before the contract was signed he went with the plaintiff and Logan to the tract several times to examine it; that they walked over the land and examined the wood; that the plaintiff pointed
The defendants then offered in evidence a survey and plat of the Thomas tract, showing its true eastern boundary as well as the location of the old fence, and proved hv the surveyor that there were twelve acres between the true line and this fence.
The plaintiff then proved by himself as a witness, that prior to the contract of the 26th of February, he had been negotiating with Thomas for the purchase of the rail and post timber on this tract for the purpose of filling a fencing contract with the B. & O. Railroad Company; that he had no use for the cord wood on the land, hut Logan and Gamble came to him and told him that if he would buy all the wood on the tract, they would purchase from him the cord wood for $300 and he could reserve the chestnut rail and post timber; that he knew nothing of the lines of the tract himself, but Thomas had walked with him over it, and had pointed out what he said were the boundaries, and pointed out the old fence as the boundary between himself and McDaniel; that he afterwards walked over the tract with Logan and Gamble and told them that Thomas had told him that this old fence was the eastern boundary of his tract; that he did not profess to know anything about the lines himself, but merely repeated to them what Thomas had told him, and told them that Thomas had so told him; that relying on what Thomas had told him, witness believed this fence to he the true eastern boundary, and so believing he had a large number of chestnut trees growing on the land between the true line as shown by the plat and the old fence, cut and made into posts and rails, a portion of which he had hauled off, and
The defendants then produced Thomas as witness, who testified that some months prior to the signing of the contract of the 22nd of February, he had sold plaintiff leave to cut chestnut for posts and rails ; that afterwards, and sometime before the contract was signed, plaintiff had offered, and witness agreed to sell.
Such is the evidence on both sides as disclosed by the record. We have done the unusual thing of setting it out in detail in the opinion, because, having granted the motion for a re-argument, we desire the real merits of the case as disclosed by the testimony, as well as the grounds of our present decision, should clearly appear. It is to be especially noted that all this testimony was admitted without any objection on any ground to the admissibility of any portion of it for any purpose whatever, being made by the plaintiff.
Upon the testimony thus let in both sides asked instructions from the Court. The five asked by the plaintiff were all rejected, and of these the second, third and fourth have been abandoned in this Court. The stress of the argument made by the able counsel for the appellant, has been very properly addressed to the granting of the single instruction asked by the defendants, for we think it very clear that if this instruction be correct it covers the whole law of the case. By it the jury were instructed that if they believe from the evidence that Gamble and Logan
' This instruction places the right of recoupment or abatement of the purchase money on two grounds, ,/zrsi, if the jury found the representation was fraudulently made, and second, if they found it was false in point of fact, though it may have been made innocently and in good faith.
In regard to the first ground there is no dispute. It is conceded that if the representation was fraudulently made (and we may remark there was evidence from which the jury could have so found,) and the defendants were thereby induced to sign the written contract, the right of recoupment is unquestionable, because in that case the defendants could have sued the plaintiff in an action of deceit for the fraud he had perpetrated upon them which induced them to enter into the contract, and in order to avoid circuity of action, the law allows them to recoup the damages sustained by the fraud, when he undertakes to enforce against them the note obtained by means of the fraud.
.Now assuming (but ex gratia argumenti only) that this representation has the effect of varying or adding to the written contract, and would have been inadmissible for that purpose if objection had been made to it on that ground at the trial, still the question arises, has this Court authority to decide in this case, that question, and treat the evidence as inadmissible for such purpose, when no such objection was made to it in the Court below?
Again in appeals from Courts of law a statute has existed since the year 1825, which declares that “the Court of Appeals shall in no case decide any point or question which does not appear by the record to have been raised, or made in, and decided by the Court below.” Code, Art. 5, sec. 12. Under this it has been decided in cases at law, that evidence let in without objection, which was clearly inadmissible and would have been rejected had objection been made to it, is evidence in the cause, and must be treated as such by this Court, and allowed to have the same effect as if it had been admitted according to the strict rules of evidence. Farmers Bank of Maryland vs. Duvall, 7 G. & J., 78; Atwell vs. Grant, 11 Md., 101.
It frequently happens that evidence may be inadmissible if offered generally, and yet admissible for some special purpose. In such cases counsel for the party opposing its general admissibility, but conceding its admissibility for a special purpose, should, if he wishes the question to be decided by this Court, take the proper steps to that end. He should object to the testimony when offered generally, or ask from the Court an instruction confining its admission and effect to the particular purpose for which he concedes it to be admissible. But if evidence is let in generally without objection, and no attempt is made in the trial Court to confine or limit its effect, it is in for all purposes, and the decisions above cited are conclusive as to how it must be treated by this Court.
We are all of opinion that the motion to dismiss must be overruled. The appeal was taken in due time after the judgment in favor of the defendants was rendered, and could not have been taken before.
Judgment affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
Since the motion for re-argument in this case, there has been considerable discussion among the Judges about the interpretation and effect of the written contract. It will enable me to set my views in a clearer light, if I quote all that portion of it, which has any bearing on this controversy. It is as follows : “The
The question of fraud in making the statement that the old fence was the eastern boundary of the tract, was properly left to the jury in the first and fifth prayers of the plaintiff; and was improperly qualified by the prayer of the defendants.
After the best reflection which I have been able to give to the subject, I am still convinced that the opinion delivered at the last term was a correct exposition of the law. ^
(Filed 14th June, 1888.)
The following statement and opinion delivered by Judge. Bkyau speaking for the Court at the January Term, 1888, is inserted by his direction, as necessary to a full understanding of the foregoing dissenting opinion:
This is the second appeal in this case. After it was remanded on the former appeal, judgment was entered for the defendants, and the plaintiff appealed. At the trial the plaintiff offered in evidence a promissory note for three hundred dollars, dated February 22nd, 1886, made, by the defendants, and payable to the order of the plaintiff six months after date. The defendants proved that the note was given in payment for the wood on a tract of land, which had been purchased from the plaintiff by the defendants, G-amble and Logan;
The .plaintiff offered five prayers, all of which were rejected by the Court, and the defendants offered one prayer which the Court granted. In this Court the plaintiff' waived his second, third and fourth prayers.
1. If the jury find that the plaintiff and defendants executed and delivered the within contract between them, dated the 26th of February, 1886, and that in pursuance of the stipulations therein contained, the defendants executed and delivered the promissory note sued on, and that said note has not been paid; then plaintiff is entitled to recover in this action; unless the jury further find that the defendants were induced to sign said contract of 26th February, 1886, by the fraud of the plaintiff.
5. If the jury believe that the plaintiff made certain representations to the defendants prior to the signing of the written contract of the 26th February, 1886, which has been offered in evidence in regard to the location of the divisional line between the lands of T. Snowden Thomas and J. L. McDaniel, which representations were in point of fact untrue, but that the plaintiff believed them to be true, and acted bona fide and honestly in making them, and because the owner of the said tracts, namely, T. Snowden Thomas, had told him prior to that time, that they w-ere true, and he, the plaintiff, believed him, then such representations will be no bar to a recovery in this case, unless the jury further believe said representations were recklessly or negligently made.
The defendants prayer is as follows:
If the jury believe from the evidence, that the defendants, Gamble and Logan, were induced to enter into the contract of the 26th of February, 1886, by the rep-son tation of the plaintiff, that he was the owner of the wood on the tract of land mentioned in the evidence, up to the fence laid down on the plat offered in evidence, and that but for such representation the defendants would noin have entered into said contract: and if the jury further believe that the plaintiff was not
The red divisional line mentioned in defendants’ prayer was the eastern boundary of the Thomas tract as shown by a plat made by a surveyor.
Plaintiff excepted to the ruling of the Court; and the verdict and judgment being against him, he appealed. ,
A inotion was made to dismiss this appeal. The verdict was rendered on the third day of February, 1881, and was regarded by the Circuit Court as a verdict for the plaintiff. Judgment was accordingly entered in his favor. As a matter of course the plaintiff could not be required to appeal from a judgment in his own favor. This Court reversed the judgment on a writ of error sued out by defendants, and decided that judgment should be entered for them. This judgment was accordingly entered on the fifth day of January, 1888, and the appeal was prayed by plaintiff on same day. Appeals are allowed in Courts of law from final judgments, and not from matters interlocutory. The plaintiff appeals from the final judgment against him on the very day of its rendition. The motion' to dismiss the appeal must be overruled.
•It must be considered as settled in this State “that where fraud has occurred in obtaining, or in the performance of contracts, or where there has been a
We have laid out of our view the class of cases, which show the circumstances under which a contract may.be rescinded for misrepresentations honestly made with a full belief in their truth; because where a contract is rescinded there must be restitutio in integrum; the state of things which existed before the contract must be.restored. In the present case the defendants have held on to the contract, and accepted the full benefit of it, as far as they could, and have not made any restitution to the plaintiff. Where a party has not, by his conduct affirmed a contract he may rescind it if lie can show that he entered into it on the faith of a false representation, made by the other party touching the essence of the contract, whether the misrepresentation were the result of fraud or mistake. Doggett vs. Emerson, 3 Story, 700. The same doctrine as to the effect of a misrepresentation was held in Joice vs. Taylor, 6 Gill and Johnson, 54.