Soper v. Jones

56 Md. 503 | Md. | 1881

Irving, J.,

delivered the opinion of the Court.

The question intended to be presented by the bill of exceptions, contained in the record of this cause, cannot be considered, because the bill of exceptions was not signed until after tbe term at which trial was had, was fully ended, and another term of the Circuit Court for Howard County, where it was tried, had intervened. The Judges of that Court, by virtue of the power conferred by the twenty-first section of Article four of the Constitution of 1867, by rule of Court, dated the 18th of March, 1868, fixed the terms of the several Courts in the several counties of their circuit. This rule, which was subscribed by the several J udges, has been certified to us in the record by the clerk of the Circuit Court for Howard County, under the' seal of that Court. It is true it appears in the record as having been put there at the request of the counsel of the appellee; but if we were to order testimony on the behalf of the appellee, in support of his motion, to which he would be entitled, the only proof we would get would be a certified copy of the rule subscribed by the J udges, which, properly certified, we already have. It is useless to go through this form to secure what we already have in the precise shape necessary to establish what are the terms of the Circuit Court for Howard County. According to the record, the case was tried and verdict was rendered at the September Term, 1880, of that Court, and on the tenth day of September. The exceptions were not signed till the nineteenth day of January following, (1881,) long after the December Term of the Court had begun.

. There was no consent of counsel nor order of Court providing for the delay. It has been fully settled by this Court that such exceptions came too late. Wheeler & Briscoe, 44 Md., 312; Hooker vs. Sawyer, p. 468, ante.

This appeal does, however, bring up for review the propriety of the Court’s action in overruling the motion made by the appellants for the arrest of the judgment; appellants’ counsel contends, that the judgment ought to have been arrested for two reasons, viz., 1. Because, as he insists, the first count in the declaration is substantially a count in trover, the second and third in contract, and the fourth a count in tort, and therefore a misjoinder. 2. Because no replication was filed to the appellants’ plea of tender.

Erom the record it appears, that the case grows out of an alleged breach of contract on the part of the appellants, who were defendants below, with the appellee, who was plaintiff. The appellee alleged, that the appellants, who were auctioneers, contracted to sell for the appellee, certain wines and liquors at specified prices, or for an advance on the prices named, hut not to sell for less than the price named; and that in violation of the contract, (which was verbal,) they sold the same for a much smaller sum than that which had been agreed upon.

All the counts in the narr., as we construe them, and as we think, according to our rules of pleading, which only require a plain statement of the cause of action, are upon ■this contract; and we do not think that by fair construction, the fourth count in the narr. can be regarded as a count in tort. There is an interjection of some unnecessary verbiage, which may be rejected without affecting the count in any way; but looking to the cause of action, which is really stated in the count, it is clear, that it is, and was intended to be, a count on the alleged contract between the parties. The words, “and contriving to injure and inflict a loss upon the plaintiff,” may he stricken from the. count and wholly disregarded as surplusage. In connection with what is properly stated, we cannot regard that language as wholly changing the form of action, and making a misjoinder of counts, as claimed. In Charlotte Hall School vs. Greenwell, 4 Gill & Johnson, 418, it is held that “ an ambiguous expression in a declaration or replication is cured after verdict; and must be construed in that sense which will sustain the verdict.” We do not think the first suggested grounds for arrestr ing the judgment maintainable.

For a second ground of reversal, the appellants insist, that their plea of tender was not traversed, and therefore, there was no issue framed for the jury on that plea, and for that reason the judgment should he arrested.

The plea of tender was filed on the 7th of September, 1880, and the record certifies that on the 9th of September, 1880, issue was joined on all the pleas. The form of the pleading, by which the issue was made up, is not given; but the distinct statement of the record is that “ issue was joined.” If a formal traverse was not filed, it may fairly he inferred that it was entered short on the docket, by verbal consent, at the time; which would he a waiver of more regular and formal pleading. No intendment will he made to the contrary. In the Charlotte Hall Case, already cited, this Court said, “ Courts will, and ought to he cautious, how they arrest judgments after verdict. They should intend nothing to overturn them, 3 Burr., 1725 ; nor ought we to he called upon to he astute, to defeat rights, where the law makes it our duty to be solicitous to maintain them.” A defect of like character existed in the pleading in Cumberland & Penn. R. R. Co. vs. Slack, 45 Md., 178-9 ; but this Court held it was an informality which was cured by the parties going to trial on that state of the pleading. Its. authority as applied to this case is not diminished by the fact, relied on by the appellants’ counsel, that in that case there was no motion to arrest the judgment. In Tyson vs. Richard, 3 H. & J., 115, there was a motion in arrest of judgment, and Judge Buchanan, speaking for the Court, in respect to the motion, said, “the not joining issue on the first and second replications was healed after verdict.” The parties having gone to trial upon “ issues joined,” as indicated by the record, they must he held to have waived more formal pleading, and the verdict has cured the defect. The case of Herbert vs. Wich, 45 Md., 471, relied on by the appellants, does not apply. That was an ex parte trial, and there could he no implied waiver, for there was no mutual submission to the jury upon the pleading which was in. There are, however, other and cogent reasons why the motion in this case was properly overruled.

(Decided 29th June, 1881.)

At common law, a plea of tender, to be good, had to be accompanied by profert in curia. 6 Bac. Ab., Tit. Tender. In Karthaus vs. Owings, 6 H. & J., 139, this Court so decided, and held a plea of tender to he bad for the want of such profert in curia. The plea in this case makes no such profert; and, according to the ruling in that case, is had for that reason. The Circuit Court was therefore asked to arrest the judgment, for the want of a formal traverse to the plea of tender, which was badly pleaded; and moreover, the Court-was asked to so rule, when'the amount stated in the plea as tendered, is not one-third of the amount which the jury, upon the proqf in the cause, have, by their verdict, found to he due to the plaintiff. We should fall far short of the rule of duty laid down in 4 G. & J., 418, if, under such circumstances, we should arrest this judgment. The judgment will be affirmed.

Judgment affirmed.