70 Md. 144 | Md. | 1889
delivered the opinion of the Court.
The appellee sued the apjjellants, executors of David Eoutz deceased, for services renderedthe deceased, David Foutz, in his life-time from the year 1862 to 1881. The account exhibited and passed by the Orphans’ Court is for $100 per annum for the period named, or $2,500. The declaration says the plaintiff sues the executors of David Foutz “for money payable by the defendants’ testator to the plaintiff for goods bargained and sold by the plaintiff to the defendants’ testator;” then follow counts for work done, and materials provided at the request of defendants’ testator, for money lent, and the other money counts.
To this declaration a demurrer was entered, the sole ground of which is that the declaration' sues “for money payable by the defendants’ testator,” and not for money payable by them as executors. We do not think this objection substantial. The 96th sub-section of section 22 of Article 15 of the Code of Public General Laws is in these words: “Causes of action may be stated against executors and administrators in the same manner as if they were the original parties thereto, except that proper words must be used to show that the claim was against the deceased.in his lifetime.” No form for making such statement is given in the Code, as is given for other cases. It is permissible, therefore, to state the cause of action as if the
Charles S. Devilbiss, the father of the plaintiff, having testified to certain services of his son for appellants’ testator from 1862 to 1867, and from 1870 to 1887, and to certain declarations of the deceased supposed to indicate a recognition of indebtedñess, such as “ John I Avon’t be "able to pay you until I declare a dividend” or “make a dividend,” and “you must bring in your hill against my estate,” &c., he was asked, “do you know the value of the services which your son rendered to David' Foutz from 1862 to 1867, and from 1870 to 1887, which you saw and knew of, and to which you haAm testified?” To this question the defendants excepted, and the same being overruled, it forms the subject of the first and second exceptions.
The appellants contend that as the'Avitness said he did not know iuliat they were doing when he saw the deceased and his son at the desk, and he Avas not told, because he said “his son Avas sworn to secrecy,” it was
The third, eighth, ninth, tenth and eleventh exceptions are to the admission of certain declarations of two of the executors at different times and.to different persons, which were offered for the removal of the statutory bar of limitations. They were offered for no other purpose, and Avere certainly not admissible to establish the claim; but for the sole purpose of removing the bar, the evidence was admissible. McCann, et al. vs. Sloan and Caldwell, 25 Md., 575. We did not understand appellants as pressing these exceptions in this Court.
The fourth exception presents a question of more graAÜty, and one upon Avhich the Circuit Court in our opinion erred. The plaintiff was presenting a claim
The seventh exception is to the allowance of this question to be put to the witness on re-examination: “On Saturday, Mr. Bond asked you what valuation you put on your son’s services in the various years up to 1887. You have testified in chief that your son’s
Upon re-examination, Mr. Greenleaf says, in sec. 467 of vol. 1 of his work on Evidence, that it is admissible “to ask all questions which are proper to draw forth an explanation of the sense and meaning of the expressions of the witness used on cross examination, if they, be in themselves doubtful.” The object of this question was clearly to obtain an explanation of what the witness meant by saying he put no value on any services but for one year. The leading way in which it was done, by reciting what he had testified in chief, and contrasting it with what he said on cross examination, by way of showing the witness, who was1 certainly not an unwilling and hostile one, that he had gotten into difficulty and must work his Avay out, was the 'ground of objection. It is certainly questionable whether so suggestive a method of re-examination should have been permitted. We think what he had said in chief should have been omitted, and not suggested to him; but the authorities seem to say the whole matter of leading questions is within the discretion of the Court, and that error can not be assigned because of the allowance of such interrogatory. 1 Greenl. Ev., sec. 435; 2 Taylor’s Evidence, 1217; Ohlsen vs. Terrero, L. R., 10 Ch. App., 127; Lawder vs. Lawder, 5 Ir. L. R., N. S., 27 ; Walker vs. Dunspaugh, 2 N. Y., 170; Wells vs. Jackson Iron Manuf. Company, 48 N. H., 491. There is an exception to the rule when a substantial injury is done by such ruling, in the exclusion of testimony a party might otherwise have enjoyed. Moody vs. Rowell, 17 Pick., 498; Gunter vs. Watson, 4 Jones (N. C.). L., 455. In this case we can see no
The twelfth exception complains of tbe exclusion of what was offered by George R. Gehr, a clerk to tbe bank, as to tbe business qualifications of tbe appellants’ testator. There would seem to be no error, as it was in rebuttal of nothing offered by tbe plaintiff. Physical or mental infirmity was not relied on as a reason for bis employment. In fact, plaintiff’s main witness testified that tbe deceased was remarkably vigorous, mentally and physically.
Tbe thirteenth exception embraces tbe prayers granted and rejected. But one prayer on tbe part of tbe plaintiff was offered and granted. To this prayer the' only objection found, as we understood it, was that the evidence did not support it. Tbe exceptions show no such ground of objection below, and that reason is not available now against a granted prayer. Assuming there was evidence to support all its recitals, there would seem to be no error in granting it.
The first and second prayers of the defendants claim in effect that there is no evidence legally sufficient to remove tbe bar of tbe Statute of Limitations. We did not understand them to be pressed in this Court. But if they were not abandoned, and there was no defect in form, what we have said in disposing of the exceptions to tbe evidence on that subject would sustain tbe Court’s action on them.
Tbe pintb prayer was too general, and was properly rejected. It excluded Charles S. Devilbiss’ evidence as to services rendered, and did not raise any question as to the sufficiency of bis testimony on tbe question of value; which we suppose was really designed to be
Judgment reversed, and neto trial awarded.