77 Md. 429 | Md. | 1893
delivered the opinion of the Court.
This is an action of assumpsit by the appellee against the appellant. The declaration contains the common counts for money lent, for mouey had and received, for money found due plaintiff on account stated, and a special count for money due the plaintiff by the defendant on a contract between them in reference to the management of a grocery, liquor and provision business in the town of Upper Marlboro’, Maryland. There was filed with the declaration a bill of particulars showing the nature of the plaintiff’s demands. The defendant pleaded never indebted, payment, set-off, and filed an account in bar. The questions for our consideration are presented upon exceptions to certain testimony and to the prayers. The objection to the plaintiff’s third prayer, and to the rejection of the defendant’s prayers, was waived and abandoned. It appears by the first hill of exception that the defendant proved that the business under the original contract between them had been greatly enlarged by parol agreements from time to time, including that of hotel keeping and others ; that heavy expenses had been incurred by the defendant in conducting for the plaintiff, these various occupations, out of which a part of the indebtedness sued for in the case arose ; that the net cash from these various pursuits including the liquor, provision and grocery business, specifically mentioned in said contract, had been remitted to the plaintiff; that the articles charged to defendant in the hill of particulars were furnished to carry on in part the business ; that a portion of these expenses the
There was also error in rejecting the evidence set out in the second and third bills of exception. It was entirely competent under the pleadings in the case for the defendant to prove his account in bar, and we cannot perceive upon what ground this evidence could have been rejected. The account had been properly pleaded and issue joined thereon. The claims were mutual, of the same kind and quality, and the amount was clearly ascertainable. The object of the law in allowing this plea is to prevent circuity of action, and to enable the parties to adjust in one suit claims which, at common law, could not be settled without two or more actions. 1 Poe’s Plead. & Prac., 613; Sec. 13 of Art. 15, of the Coda of Public General Laws.
It appears by the third bill of exceptions, that after the ruling of the Court, as above stated, the witness testified that he kept an account of the expenses incurred in the business. The book of original entries in the hand-writing of the defendant was produced and offered in evidence, but upon objection the book was excluded and all evidence of its contents. All we have to say in regard to this exception is, that the book which was offered in evidence was admissible for the purpose of refreshing the witness' memory. Bullock vs. Hunter, 44 Md., 417. But so far as it was offered as a book of original entries, it was not admissible, because the entries were made by the party himself. Romer vs. Jaecksch, 39 Md., 589, and authorities there cited. The first and second prayers of the plaintiff, we think, are disposed of by what has been said in reference to the bills of exception. The first prayer was erroneous because it excluded from the jury all of the evidence except what was based upon the written contract. The second prayer should not have been granted because it excluded all consideration of the account in bar, and all evidence connected with it. The objections to the other prayers have been withdrawn and are not, therefore, before us. For the errors referred to, the judgment will be reversed, and a new trial awarded.
Beversed, and a new trial aivarded.
