Lookerman v. Eastern Shore Trust Co. ( 1924 )

This case was on the docket of the January term and was heard during that term. On motion of appellee a re-argument was granted and heard during the present term. Before the re-argument a motion was made to dismiss the appeal on the ground that the record was not transmitted to this Court "within three months from the time of the appeal taken" as required by Code, art. 5, sec. 6 (Rule 2 of this Court). No such motion was made at or before the previous argument.

In the view we take of the matter it will not be necessary to decide how far, if at all, that omission affects the present motion, as we do not think it ought to have been granted even if it had been made before the former hearing.

Section 40 of article 5 of the Code (Rule 18) provides that no appeal shall be dismissed because the transcript shall not have been transmitted within the time prescribed, if it shall appear to the Court of Appeals that such delay was occasioned by the neglect, omission or inability of the clerk or appellee, but such neglect, omission or inability shall not be presumed, but must be shown by the appellant.

The appeal was taken October 6th, 1923. The record was transmitted to this Court on January 11th, 1924, five or six days after the three months' period had expired. It was therefore, under Rule 18, incumbent upon appellant to show that the delay was occasioned by the neglect, omission or inability of the clerk or appellee. Mr. James E. Ellegood, one of appellant's attorneys, filed an affidavit in this Court, in which it is alleged:

That (and this appears from the docket entries) the time for filing exceptions was extended by the trial court until December 15th, 1923, because of the delay on the part of the court stenographer in presenting appellant's counsel with a copy of the testimony; that counsel for appellant instructed the stenographer immediately after the rendering of the judgment to transcribe the testimony and furnish them with a copy of same, and on several occasions called upon him for it, but did not receive it until November 28th, 1923; that they proceeded promptly to prepare the exceptions, and completed and filed same with the court on December 12th, 1923, three days before the time allowed by the extension; that a copy of said exceptions, together with a copy of the testimony, was placed in the hands of counsel for appellee at the request of the trial court; that appellee's counsel revised them by copying from the evidence more fully than counsel for appellant had done, and held them for more than a week; that the court raised no objection to the exceptions in the form that they were submitted by appellant's counsel, but signed them as revised by counsel for appellee, as appellant's counsel did not object to the changes that had been made; that after the exceptions had been duly approved and signed by the court the clerk proceeded with diligence to make up the record for the Court of Appeals; that since December 12th, 1923, neither the appellant nor his counsel have had any control over the exceptions or the record; that counsel for appellant were insistent upon having the record in the case made up and transmitted within the time required by law, and that appellant and counsel did everything they could to hasten the making up and forwarding of the record.

The affidavit of the deputy clerk alleges that it was his duty to make up the record in this case; that to the best of his recollection the signed bills of exception were filed in the clerk's office not earlier than January 7th, 1924; that he completed and mailed the record on January 11th, 1924; that he made up the record just as quickly as it was possible to be done; that the delay in making up and transmitting the record was not due to any neglect, omission or inability of the clerk.

It is thus apparent from both of the above affidavits that no fault attached to the clerk. Can any part of the blame then be attributed to the appellee or its counsel, or to the trial court?

The affidavit of Frederick H. Fletcher, one of the appellee's attorneys, alleges that a duplicate copy of the draft of the bills of exception was submitted to him on or about the 13th day of December, 1923; that they did not, in his judgment, fairly present the evidence or the rulings of the court; that he promptly took up the matter, and in about a week submitted to the trial court the suggestions of the appellee as to the form of such bills of exception, which required the re-writing of over half the amount of the bills of exception as they appear in this Court; that said redraft was not objected to by counsel for appellant and was accepted by the court as the proper form of the bills of exception.

Under all the facts, as they appear from the above affidavits, we are unable to say that counsel for appellee did not, at least, participate in the delay. The one having charge of the matter gives it, as his opinion, that there would have been greater delay if he had not redrafted the bills of exception; but in view of the shortness of the time remaining, we think a week should not have been required to suggest such changes as he thought should be made; and it might well be that, with these suggestions, counsel for appellant could have shaped up the exceptions and had them signed in a shorter time.

Apparently appellant's counsel made no objection to any changes suggested by counsel for appellee, but there is nothing to show that the court required them to be made or would have refused to sign the exceptions as originally offered.

When the failure to transmit the record on an appeal within the time prescribed appears to have been caused by the appellee as well as the appellant, the appeal will not be dismissed on account of the delay. Forest Lake Cemetery v. Baker,113 Md. 529. See also McConigal v. Plummer, 30 Md. 422; Hopper v.Beck, 83 Md. 647.

It appears from Mr. Fletcher's affidavit that his redraft of the bills of exception was presented to the court in about a week after December 13th, and that the redraft was promptly accepted both by counsel for appellant and the court. It is not, therefore, apparent why the court should have delayed signing them for more than two weeks. This ought not to be charged to appellant, as it does not appear that his counsel had the slightest reason to anticipate such delay, and therefore they were not charged with the duty of taking steps at once to require the trial court to act. The bills of exception were signed as of December 12th, 1923, but it is apparent that they were not actually signed until a later date.

The situation was entirely different in the case of Marx v.Reinecke, 142 Md. 342, cited by appellee. There appellant permitted months to elapse without taking steps to amend his bills of exception in accordance with the suggestion of the court, after being told by the trial judge that they were not in proper form as offered; and, while insisting they were in proper form, did nothing to require the judge to sign them.

The motion to dismiss the appeal must be overruled.

The Eastern Shore Trust Company, appellee, caused to be issued out of the Circuit Court for Dorchester County, directed to the sheriff of Somerest County, a writ of attachment on a judgment obtained by it against The Eastern Shore Brokerage and Commission Company.

The record shows that this writ was entered on the docket of the Circuit Court for Somerset County, but it does not appear that a copy of the docket entries in Dorchester County was sent with the writ, as required by section 7 of article 17 of the Code.

The attachment was laid in the hands of Charles A. Lockerman, the appellant, and he was summoned as garnishee. He appeared by counsel and pleaded nulla bona. The case was moved to Wicomico County and tried before a jury, which rendered a verdict in favor of plaintiff. This appeal is from the judgment entered on that verdict.

It is contended by appellant that the trial court was without jurisdiction, because it does not appear from the record that the provisions of the statute giving the court jurisdiction were substantially complied with, there being nothing in the record to show that a copy of the docket entries was sent with the writ or ever filed in Somerset County.

A petition for writ of diminution was filed in this Court by appellee, in which it is alleged that a copy of the docket entries in Dorchester County accompanied the writ of attachment sent to Somerset County, but that it does not appear in the record in this Court that they were contained in the record sent from Somerset County to Wicomico County; and asking that the record be corrected. At the argument, counsel for appellant agreed, if the record could be corrected by the writ of diminution, the record should be considered as amended to show that a copy of the docket entries was sent with the writ to Somerset County, but they contended that the necessary correction could not be made by such a writ, because it could only be issued to the court where the case was tried and from which, on appeal, the record was sent.

It was not contended by counsel for appellee that a writ of diminution issued to the trial court would cure the omission in the record.

It thus appears by the agreement at the argument of counsel for the respective parties, that the law was complied with in issuing the writ of attachment from Dorchester County to Somerset County and that it was accompanied by a copy of the docket entries, which were duly filed in Somerset County, but that fact is not shown by the record sent from Somerset to Wicomico County.

The question therefore is: It appearing by the agreement, and this Court being thus informed, that the Circuit Court for Somerset County had in fact jurisdiction, on removal of the case to the Circuit Court for Wicomico County, did that court lack jurisdiction to try the case because the record sent to the latter court did not show all the facts necessary to give the former court jurisdiction? We think not. It was the fact that the court from which the case was removed had jurisdiction, and not the knowledge of that fact by the trial court, which determines the question, on appeal to this Court, and when it is agreed that the fact existed, it has the same effect as if it appeared in the record. If a motion had been made in the trial court to quash the writ, that court would have required or permitted the production of the necessary evidence of the existence of the jurisdictional fact in the court from which the record was sent. There having been no such motion, and the parties having gone to trial on the record as it was sent, they cannot now raise the question of its incompleteness, if, indeed, it was necessary to completeness that the docket entries in a case docketed against a garnishee should show all the facts necessary to give the court jurisdiction to proceed under the attachment. As a matter of fact the clerk of the Circuit Court for Somerset County certifies, in an affidavit filed in this court, that the attachment and the garnishee cases were docketed separately, as is the usual practice.

We hold that the trial court had jurisdiction, and that it so appears from the record as supplemented by the agreement of counsel.

The record contains ten bills of exception, the first nine relating to the rulings on evidence and the tenth to the rulings on motions to strike out testimony and on the prayers.

On October 10th, 1919, there was a transaction between Lockerman and the Eastern Shore Brokerage Company, through its manager of sales, James A. Colbert, in regard to the disposition of fifteen hundred cases of canned pears in the factory of Lockerman, resulting in the passing by Colbert to Lockerman of a check of said company for five thousand dollars signed by its president and treasurer. The contention of appellee is that the check was a loan to Lockerman on his pack; and that no part of the loan was ever paid. Lockerman, on the other hand, contends that he sold the pears to the brokerage company at six dollars per case of two dozen cans f.o.b. factory, to be shipped as ordered, and that the check was a payment on account.

There is evidence to support both theories. There is also evidence tending to show that Lockerman was indebted to the brokerage company in the amount of $454.13 for commissions on sales made on commission.

Appellee further contends that even on appellant's theory, that the pear transaction was a sale, it was the duty of the vendor, when he learned that the brokerage company repudiated the sale and declined to take the goods, to sell them at once at the market price, and that any loss resulting from his failure to do so, either by reason of decline in price or deterioration in condition, must be charged to him, and that he was liable in damages for failure to take proper care of the goods.

Taking the exceptions in order:

We find no error in the rulings to which the first nine exceptions relate except the fourth, and that was not prejudicial.

The first was to the refusal to strike out the testimony of the witness Colbert as to samples of canned goods not being approved, because he states that he knew it only through his broker. In the first place it would be impracticable to get such information in any other way. And then the witness had previously testified that the goods were sold subject to approval and the samples were to be sent to a broker.

The second and third were to the refusal to strike out certain testimony as hearsay. The exception should have been taken at the time of the admission of the testimony, as its character was then apparent.

The question objected to in the fourth was not answered, so there was no injury.

The fifth was to the refusal to strike out hearsay testimony of a witness for plaintiff, but such testimony was brought out only on cross-examination, and directly asked for.

The sixth, seventh and eighth relate to testimony which was properly admitted to contradict testimony of the defendant, Lockerman.

The ninth was to the striking out of the testimony of Lockerman as to the amount he received from the sale of pears after it had been agreed that they should be sold by him without prejudice to the claim of either party. This testimony was relevant and striking it out was prejudicial error.

The tenth is bad in form. It embraces in one exception rulings to motions to strike out testimony and on prayers and special exceptions. It will not be considered as to the motions but only as to the rulings on the prayers and special exceptions thereto. See Harris v. Hipsley, 122 Md. 436, and cases there cited.

The Reporter is requested to set out all the prayers appearing in the record.

There was no error in granting plaintiff's second prayer.

The third, fifth, eighth and ninth should have been refused, and the granting of them was prejudicial error.

The third puts the burden of proof on the defendant to show that the pear transaction was a sale. There is no such rule of law. The burden remained with the plaintiff to prove the indebtedness of the garnishee to the judgment debtor and if this was negatived by proof of a sale then the burden was on plaintiff to prove that the transaction was not a sale.

The fifth is misleading and tends to confuse. Besides it tends to exclude the right of garnishee to offset the amount due him for balance of purchase money, if the jury should find a sale and a balance due, against the amount due by garnishee for commissions. There was no reversible error in overruling the special exceptions to this prayer, as the first assignment was too general, and the second is subject to the general exception.

The eighth and ninth announce the proposition that notwithstanding a sale and a wrongful refusal of the purchaser to accept the goods, the vendor, in a suit by vendee, could be held responsible for loss following failure to sell the goods at the market price when he learned that the vendee had repudiated the contract, if there was a decline thereafter in price or a deterioration in the condition of the goods. No authority is cited in support of such a principle, and we know of none.

The authorities cited by appellee deal with suits by vendorsagainst vendees. In such suits the defendant is entitled to have the claim against him reduced by such amount as would have been saved if the vendor had done what he could to reduce his loss. But the vendee who breaks his contract is not in a position asplaintiff to invoke such a principle. The eighth is also open to the objection, referred to in considering the fifth, that it tends to exclude the consideration of defendant's right of set off; and the ninth submits a fact to be found by the jury of which there is no evidence, viz.: that it was a term of the contract "that delivery of said pears should be made immediately"; and the court's attention was called to this by a special exception, which should have been granted. There was no error in overruling the other special exceptions to the eighth and ninth prayers.

There was error in refusing defendant's first prayer. It sought to have the jury instructed, in effect, that there could be no recovery in this action as to any part of the five thousand dollars check if the jury found that the pear transaction was a sale.

There was no error in the refusal of defendant's second, third, fourth, fifth, seventh and eighth prayers. The third is defective in that it takes no account of the amount received by defendant for the goods sold by him under the agreement.

The fourth is inconsistent with all the testimony, even defendant's testimony showing that the terms of the sale were that the goods would be delivered on receiving shipping instructions. He does not claim he held them because of failure to pay the balance of the purchase price. In any event the ground is covered by the first.

The fifth, so far as it is good, is covered by the first. The second is covered by the first.

The seventh is bad in that it refers to the pleadings, without specifically pointing out in what respect there is a variance. But even if considered as a demurrer to the evidence, it was properly refused, because there is evidence proper to be submitted to the jury.

The eighth is bad in form at least. For the purposes of this case whatever may be good in it is covered by the first.

Previous order in this case rescinded. Judgment reversed andnew trial awarded, with costs to appellant.

PARKE, J., dissents from the ruling on the motion to dismiss.