Williams v. Higgins

| Md. | Mar 13, 1869

Brest, J.,

delivered the opinion of the Court.

The first exception taken by the appellant, who was the defendant below, was to the competency of Mrs. Higgins, who was allowed to testify upon the offer of the plaintiff. Conceding she was incompetent under the Act of 1864, ch. 109, section 2, a majority of this Court thinks it furnishes no sufficient reason for a reversal of the judgment. If the appellant was not prejudiced by the testimony, no matter how erroneously admitted, it forms no ground for a reversal. The numerous decisions of this Court have been uniform in establishing this practice, and it is too conclusively settled to admit of any doubt or question. It not only applies to the instructions given by the Court upon matters of law, but also to the admission of evidence. Coale vs. Harrington, 7 H. & J., 157; Duvall vs. Farmers' Bank, 7 G. & J., 60; Clark vs. State, use of Darnall, 8 G. & J., 125; Anderson vs. Garrett, 9 Gill, 131; Hanson vs. Campbell’s Lessee, 20 Md., 233. If testimony is improperly admitted, but before the jury retires to make up their verdict, it is withdrawn by the Court, and the jury directed not to consider it, an objection to its admissibility in the first instance would not be cause for reversal — the presumption of law being that the jury acting in obedience to the instruction of the Court did not consider it, and the party excepting had sustained no injury. In this case the record shows, that the Judge below, who was acting in the capacity also of jury, did not consider the testimony of Mrs. Higgins, it being stated by him that it “had no weight in shaping the conclusion to which the Court has arrived upon the merits of the case.” We cannot, with this part of the record before us, containing the solemn statement of an able and intelligent Judge, assume that he was in any manner influenced by the testimony in question, and that the appellant was in any way more prejudiced than if it had never been admitted.

Upon the second exception, which is taken to the rulings upon the law, this Court is unanimous in the conclusion that there is no error, and that the law, as stated, fully covered the case. The first proposition of the Court below announces the liability of the defendant’s testator if he disregarded the instructions given him as to the investment of the money of the plaintiff, although he may have undertaken, voluntarily and gratuitously, to make the investment. The correctness of this law is fully supported by the decision of Chief Justice Mak-SHALXj, in the well considered case of Short vs. Skipwith, 1 Brock. C. C. Reps., 104, and does not require á further citation of authorities'to sustain it. The objection, that there is no evidence in the case to support this legal proposition, is fully removed by the contents of the paper offered in evidence by the plaintiff, and proved to have been in the handwriting of Mr. McLean, in which he" charges himself with “ amount of money put in my hands to be invested in mortgage on property of Newsham & Co.,” and the testimony that there was no such mortgage to be found among the records in the office of the clerk of the Superior Court of Baltimore City.

The second and third propositions laid down by the Court, contain in substance the rejected prayers of the defendant, with the necessary addition, that any ratification of an investment made, must be with full knowledge of the nature and character of the security taken, and in the omission of which the defendant’s prayers were defective. These propositions certainly state the law most liberally for the defence, and cannot be regarded, in view of all the evidence, as prejudicing the rights of the defendant upon the merits of the case. They but announce the familiar rules of law, that an agent, whether voluntary and gratuitous or for compensation, is responsible for a want of proper care and diligence, and that the ratification by a principal, to be binding, must be made with a full knowledge of all the circumstances, where the acts of the agent were without authority. Russell vs. Palmer, 2 Wilson, 328; Ireson vs. Pearman, 3 Barn. & Cress., 799; Hart, et al. vs. Frame, et al., 6 Clark & Finnelly, 210; Hunter vs. Caldwell, 10 Adol. Ellis, N. S., 69; Cox vs. Livingston, 2 Watts & Sargeant, 103; 2 Bouvier, sec. 1318.

(Decided 13th March, 1869.)

For these reasons a majority of the Court thinks the judgment below should be affirmed.

Judgment affirmed..

RobiksoN, J., dissented.