Lee v. Tinges , 7 Md. 215 ( 1854 )

Ecclestoh, J.,

delivered the opinion of this court.

After veidict the appellants filed a motion for a new trial, stating they did so, without “waiving their exceptions.” The court heard and considered the motion, but overruled it. The same day on which this decision was made, the appellants filed a motion in arresl of judgment, which, however, was subsequently withdrawn, without, having been acted upon by the court.

The appellee insists, that this appeal should be dismissed, Because the reasons assigned why a new trial should be granted involved questions of law, which were presented in the bills-of exceptions, or if not, which might have been presented in them. The principie contended for is, that if a party asks for a new trial, relying upon matters of law, and after being considered by the court the application is refused, although he may not have been required to waive or abandon his exceptions, still he cannot have his case reviewed upon appeal; because such an application for a new trial, will, of necessity, be considered by the courts as a waiver of his bills of exceptions and right of appeal.

In 6 How., 283, United States vs. Hodge, et al., the Supreme court say, “The motion for a new trial was not a waiver of a writ of error. In some of the circuits, there is a rule of court to this effect. But effect could be given to that rule only by requiring a party to waive on the record a writ of error, before his motion for a new trial is heard. In the greater part of the circuits no such rule exists. It does not appear to have been adopted in Louisiana.”

In Mitchell vs. Mitchell, 11 G. & J., 389, the county court refused to entertain a motion for a new trial, unless the party would abandon her exceptions, which being refused, the court declined to entertain the motion.

After verdict in favor of the caveatees, in Townsend vs. Townsend, 9 Gill, 517, the caveators moved the court to set aside the verdict and grant a new trial. Among the reasons assigned, the 4th alleged error in the court, for excluding from the jury proof of the declarations of Walter B. C. Worthington, one of the witnesses to the will. The question as to the admissibility of this proof, was presented by the caveators’ bill of exceptions. The court overruled the motion. When the- case was under argument upon the appeal of 'the- caveators, the-counsel.forthe appellees contended, “That the motion for a new trial, and especially upon the ground covered by the bill of exceptions, was a waiver of said bill of exceptions.” In the opinion of the court nothing is said on this subject: but it is perfectly clear that they did not adopt the view of the appellees ;,for if they had the appeal must have been dismissed. Instead'of which the decision below was-reversed, upon the question presented in the bill of exceptions. Orre of the judges dissented from the decision of a majority of the court, in regard to the admissibility of the evidence, which had been rejected below, but as he makes no allusion to the exception having been waived, by the motion, we consider him as concurring with the other judges, in the propriety of treating the appeal as legally before them.

The decisions on this matter of practice have not been entirely uniform: but the cases referred to we deem sufficient to warrant, the conclusion, that in Maryland, when the same questions are presented in the bill of exceptions, and in the application for a new trial, the court below have the right, and in general ought, to require the party to waive his exceptions, before they will entertain the motion. If, however, the motion is heard and decided, but it does not appear that the party was required to make such waiver, the appellate tribunal will nevertheless, entertain the appeal. See 9 Porter’s Rep., (Ala.,) 110, West vs. Cunningham.

The motion to dismiss is overruled.

The two notes mentioned in the first exception, and offered in evidence by the plaintiff, were objected to by the garninishees, but the court refused to sustain the objection, and this refusal constitutes the first exception.

At -the time of making the oath, for the purpose of obtaining the attachment, the plaintiff produced an account of sundry items of goods sold and delivered, as his claim, on which the alleged absconding debtor was indebted. The short note filed in the cause, is for goods sold and delivered; for money lent and advanced to, and paid, laid out and expended for the defendant; and for money had and received by the defendant for the use of the plaintiff. Although the .witness Alnutt, in his examination-in-chief, stated the account was correct, yet, upon cross-examination, it appeared that he did not sell the goods, but as book-keeper he made out such account in his books from information derived from the other clerks. But upon further examination by the plaintiff, the witness “stated that he had been in the habit of obtaining from the defendant his notes for previous purchases, and that he presented to him the account, as filed at different times, and soon after the dates set forth in the said account as of purchases, and that the defendant subsequently to such presentment, gave to witness the note following, which he also proved was signed by the defendant.” The note here alluded to, is the one for $498.40, dated the 13th March 1850, and payable in six months: which the witness says was for a portion of the account. From the testimony of this witness, it also appears the note for $241.61, dated the 13th of September 1850, and payable in one month, was subsequently enclosed in a letter to the plaintiff from the defendant. In the letter, the defendant offers an apology for not being able to comply with his engagements, and asks, as an act of kindness, that the plaintiff will accept the enclosed note, for the balance due on former note. And the witness says, the note so enclosed was for the balance of the larger note of $498.40, then remaining unpaid.

The objection urged against the admissibility of these notes is, that an account was produced before the magistrate, as the claim on which the debtor was indebted, and the notes not having been produced at that time, they cannot now be used as evidence, in support of the plaintiff’s claim; especially in the absence of other legal proof to establish the correctness of the account.

It is admitted by the counsel for the appellants, and properly so, that if A., sells goods to B., which are regularly charged to him in the ordinary course of business, and subsequently a promissory note is given by B., for the amount of the claim, after the note falls due, A., may maintain an action upon the account notwithstanding the note. And it is also conceded, that if A. has a claim for money had and received for his use, by B., who gives a note for the same, the note will be sufficient evidence to sustain an action by A., upon the common count, for money had and received. But it is said, although these principles apply to ordinary cases of actions in assumpsit, they are not applicable to attachments, And many cases have been cited, for the purpose of showing how careful the courts have been to require a strict compliance with the provisions of our attachment laws: among them is that of Dawson vs. Brown, 12 G. & J., 53. And it is supposed, this decision is quite sufficient to show that the notes objected to were improperly admitted in evidence. ' But we do not concur in this view of the matter. There the attachment was held to be erroneous, so far as related to the notes, because they were not produced with the affidavit. But it will be seen, that the objectionable items of the account consisted of the notes themselves, not charges for goods sold and delivered or for other matters, constituting an account, which, even if a note had been given for the same, would have been sufficient to support an action of assumpsit. In reference to what the statute requires to be produced at the time of making the affidavit, (he court held that the creditor was not bound to produce before the justice, all the written evidence which he might have in his possession, and which might be used before the jury to establish the debt, and entitle him to a condemnation of the property attached. And among the examples intended to elucidate this proposition; and to show what kind of evidence need not be produced, the court gave the following: “So if an attachment be required on an open account, for goods sold and delivered, or money lent and advanced, and the creditor had this debtor’s written orders for every item charged in the account, their production before the judge or magistrate is uncalled for by the act of Assembly. It requires not the production of the testimony, qua testimony, by which the creditor’s claim is to be established, but the production of his cause of action, the account, bill, bond, note or instrument of writing, on which a declaration would be framed, as his cause of action, being in the language of the act of Assembly, ‘that by which the said debtor is so indebted.’ ” If in the case put by the court, the account would be a sufficient cause of action, on which to have an attachment, and at the trial the written orders might be used as evidence to sustain the claim ; why may not the account in this case be sufficient to sustain the present attachment; and why may not the notes when taken in connection with the testimony of Alnutt and the letter of the defendant, be permitted to go to the jury as evidence, tending to prove an acknowledgment on the part of the defendant, of at least a portion of the account? It cannot be doubted that in an action of assumpsit, upon this account, the notes, under the circumstances disclosed in the record, would be proper for the consideration of the jury, as evidence of an acknowledgment by the defendant, that a portion of the account was correct. And if this were to be so in assumpsit, we see no good reason why it should not be so in the present instance. This, in our opinion, is clearly within the principle established in Dawson vs. Brown.

We do not understand the plaintiff as relying upon either note as his cause of action, or as evidence, per se, of the correctness of the account; but that they were offered in connection with the other proof as evidence of the defendant’s acknowledgment, that a portion of the account was correctly due. At all events they were admissible in that view, and as the particular object for which they were offered is not stated in the bill of exceptions, we cannot reverse the decision which admitted the proof.

This decision is said to be erroneous for a further reason, which is thus stated: (being the 2nd point of the appellants:) “The said evidence was likewise inadmissible, being contrary to the account filed with the attachment. The proof establishes, that $241.61 was due on the 13th of September 1850, and continued due until the attachment issued, there being no evidence of any other indebtedness at or between' those periods. The account shows the payment of $498.40, on October 5th, 1850, which was more than double the amount proven'to be then due, and of course showed an extinguishment of indebtedness prior to suit brought.” We do not see how we can sustain this point, even if the question presented by it is to be considered as properly before us. It is evidently a mere question of fact. It assumes, the proof establishcs $241.61 to have been due on the 13th of September 1850, and continued due until the attachment issued, there being no evidence of any other indebtedness at or between those periods. And because the account shows the payment of $498.40 on 5th of October 1850, we are required to assume that this payment was an extinguishment of all indebtedness prior to suit brought. The language is, “showed an extinguishment of indebtedness prior to suit brought.” Which of course, means all' indebtedness; for otherwise it would avail nothing, in support of the position here relied upon.

There are several' objections to the point. One is, that it is inconsistent in its different parts. For if it be true, “the proof establishes that $241.61 was due on the 13th of September 1850, and continued due until the attachment issued it will be difficult to perceive how it can be true that the payment of $498.40 on 5th of October, showed an extinguishment of all indebtedness prior to suit brought, which was on the 21st of the same month. Moreover, we are not prepared to say, that this payment left no part of the account due at the date of the attachment, when the witness, Alnutt, has sworn that the portion of the account then due was $241.61. And this we understand as having been sworn to by him, with a knowledge that the credit of $498.40 was upon the account! That he knew it, is at least a fair presumption,, because he stated, “that the account annexed to the affidavit, warrant and attachment, was correct.” In this reference to the testimony of Alnutt, we are not to be understood as considering him competent to speak of the correctness of the account, or of the amount due thereon, from any knowledge on. the subject, which, as book-keeper, he derived from the other clerks. But we think his testimony in regard to the portion of the account due at the time of issuing the attachment, is entitled to consideration as evidence properly in the cause, under the circumstances stated by him, in reference to his habit of presenting to the defendant the account at different times, and obtaining from him his notes for previous purchases: the note for $498.40 being one of them ; for the balance of which the note of $241.61 was given.

Nor can we see how it is possible from the facts to draw the inference, that $241.61 was the only indebtedness from the defendant (o the plaintiff between the 13th of September and the 21st of October, or that no other portion of the account Was due “at or between those periods.” It is undoubtedly true, the defendant was in very embarrassed circumstances. The manner in which his mercantile affairs were brought to a close, in October, is clear proof of this. His letter, enclosing the note of the 13th of September, shows how much he was in want of funds to meet his engagements. For the moderate sum of $241.61, falling due three days after, he is under the necessity of asking, as a favor, that the plaintiff will accept his' note, payable one month after.

It will be recollected, the appellants contend' that the payment of $498.40", on the 5th of ©ctobér, was an extinguishment of all indebtedness prior to the institution of the suit, because the evidence does not show any other indebtedness than the $241.61 between the 13th of September and 21st of October. To sustain the correctness of this position we must come to the conclusion * that notwithstanding the embarrassed condition of the debtor, notwithstanding he was compelled from want of funds to ask indulgence for a month on account of' the balance due in a few days upon á note, nevertheless, before the expiration of that month,- hé paid not only that balance to the plaintiff, but double the amount for which he liad any right fo demand payment. And in addition to- this, the only evidence of the payment of $498.40 is the credit of that sum on the account, whilst a credit of the 16th of September shows a payment of $258. Now if the appellants are' right in insisting there was nothing due between the 13th of September and the institution of the suit, except the $241.61,' then that sum was extinguished, indeed overpaid, by (he payment of $258, and the necessary consequence is, that notwithstariding the serious embarrassments under which' Wolf was laboring, he paid the $498.40 when not a cent thereof was due.

But supposing these objections to the second point of the appellants should be deemed insufficient, there is another,which, in our opinion, is conclusive.

In Allender, et al., vs. Vestry of Trinity Church, 3 Gill, 173, it is said: “If any principle, both at law and in equity, is conclusively settled, it is, that if a debtor defendant, seeking to discharge himself from a claim preferred against him, relies on the entries on the credit side Of the account rendered or exhibited by his creditor, he thereby admits in evidence against him the entries on the debit side of the account. If then the appellees put their defence on the credits allowed them in account X, the debits of that account not being discredited or disproved by tire testimony in the cause, establish the claim for which these proceedings were instituted.” In the case before us, there is no testimony discrediting or disproving the correctness of the items charged in the account, or lending to show that the goods had not been sold and delivered. Nor is there any evidence of the payment of §498.40 on the 5th of October, except the credit of that sum on the account, the charges in which, after deducting the credits, leave a balance of §1030.88. The principle just stated will not permit the appellants to reject the charges and take the credit, for the purpose of applying that as an extinguishment of the sum which the witness, Alnutt, says was due when the attachment issued.

Dawson vs. Brown establishes the principle, that the plaintiff in attachment may recover a less sum than the amount sworn to by him before the justice.

The second bill of exceptions shows, that the garnishees had given evidence of a sale of the goods in controversy to William F. Lee, as their agent, by J. H. Merritt, as clerk and agent of Wolf. It therefore became a matter of some importance to them to show, that Merritt had authority to make the sale. He,-as a witness for the appellants, stated, “ that when said Wolf left the city, his instructions to the witness had always been, to go on with his (Wolf’s,) business-as if it'were witness’ own.” It then appears, that “The garnishees, for the purpose of showing by particular facts the general scope of the authority under which said Merritt acted habitually on behalf of said Wolf, then asked him whether said Wolf was ever absent from the city? to which the witness replied, that he frequently was, having stores both in Washington and in parts of Virginia, as well as in Baltimore.” The garnishees then further asked, “whether he, the witness, was in the habit of acting by said Wolf’s consent, and with his approbation, to every extent in reference to buying goods, or otherwise providing for Wolf’s said stores during his absence'?” The defendant objected to this question and the court sustained the objection, to which the appellants excepted.

The court, we think, were right, because the question is a leading one, according to the definition of a leading question in 1 Greenlf. on Ev., sec. 434, where he describes it as embodying a material fact, and admitting of an answer by a simple negative or affirmative. The present inquiry did present a material fact, and might very well have been answered by the witness by simply saying, I was, or, I was not. And the course of the examination shows, very clearly, the witness could have no difficulty in knowing what answer he was desired to give. In 2 Phillipp’s Ev., 401, (Ed. of 1849,) it is said: “Leading questions, that is, such as instruct a witness how to answer on material points, are not allowed in the examination-in-chief.” And in note 366, on page 769 of the 4th volume, this subject is treated of more at length, where cases are cited in which questions have been held improper, as being in conflict with this principle. It is there said to-be a mistake “ to suppose such only is a leading question to which yes or no would be a conclusive answer.”

There are cases, even.in a direct examination, where leading questions may be permitted; as, “where the witness- appears to be hostile to the party producing him-or in-the interest of the 'other.party, or unwilling to give evidence, or where an-omission in his testimony is evidently caused by want of recollection-, which a suggestion may assist.” And in 1 Greenlf. on Ev., sec. 435, other instances, in addition to these, are given, -but in our opinion the principles involved in them do not sanction the propriety of the question before us.

From the third exception it-appears, Wolf returned to Baltimore on the 19th of October, and had an interview with-Merritt at his house, when Merritt stated to him the particulars of the settlement with Lee and Brewster, detailed in the testimony of the witness, Lee; to which Wolf made no objection. And Merritt proved, that to the best of his recollection he then delivered to Wolf the receipt and order received from the witness, Lee, for the notes of Wolf held by Lee and Brewster.

For the purpose of showing a ratification by Wolf of the conduct of Merritt, and further illustrating the general scope of the authority tinder which Merritt habitually acted for Wolf, the garnishees proved by him, that, after the period when the store in Baltimore was shut up and closed, the witness continued in Wolf’s employment, at his request, and was sent to Virginia to his stores there. And then the garnishees “ offered to prove that the witness, within the week following the transaction with Lee and Brewster, settled the claims of several other creditors of said Wolf in the same manner in which he had with said Lee and Brewster, and that said Wolf approved of and confirmed the same.” To which the plaintiff objected as being evidence of matters subsequent to the attachment, and the court sustained the objection.

Merritt is represented as salesman and confidential clerk of Wolf, in his retail store in Baltimore. There can be do doubt that the principal may, if he pleases, confer on such a clerk full power to make a sale like the one in controversy. But in the ordinary and usual course of business, “a clerk in a retail store has no authority to sell by wholesale in payment of a debt due, and certainly not in payment of a debt not due.” Hampton. et al., vs. Matthews & Shaw, 14 Penn. State Rep., 108. In that case the court say: “It is obvious, that if a clerk has authority to apply any quantity of goods he may choose to the payment of a debt not due, he has power, in many cases, materially to injure, if not totally to destroy, his employer.” See also Beals vs. Allen, 18 Johns. Rep., 366.

To establish the right of Lee and Brewster to the property, either Merritt must have possessed authority to make the sale, or else it was necessary that it should have been ratified by Wolf before the attachment was levied.

The offered testimony being for the purpose of showing a ratification of the sale, and further illustrating the general scope of the authority under which Merritt habitually acted for Wolf, was properly rejected by the court, because the sales to, or settlement of the claims of, other creditors occurred, not only after the attachment, but after the business affairs of Wolf had undergone a very material change from what they were when Merritt made the sale to Lee and Brewster. It would be a very unsafe rule to admit proof for the purpose of authorising a jury to infer the ratification of the act of an agent, or that he had authority to do the act, because subsequently thereto, under other and different circumstances, the agent did similar acts, which were approved of and confirmed by his principal. A man might be quite unwilling, under a given state of facts, to ratify a contract made by his agent, when, under a change of circumstances, he would be pleased to have the opportunity of confirming a similar contract.

Prior to the transaction with the agent of Lee and Brewster, no similar sale appears to have been made, but the business in the store up to that time had been going on as usual. It took two days to accomplish the sale, which was finished and the goods delivered on Thursday or Friday night. And on the following Saturday morning, (the 19th of October,) at 7 o’clock, Merritt informed Wolf of the sale. That transaction did not close the store, but it was opened for business as usual on Saturday morning. Afterwards, on the same day, it was closed by other parties under attachments, of which Wolf was informed that night, about 10 o’clock, by Merritt. Within the week following, the transactions between this clerk and other creditors took place, which were approved of by Wolf, and were offered in evidence but rejected.

There is a rule of evidence which excludes collateral facts, or such as do not afford a reasonable presumption or inference as to the principal fact or matter in dispute. And the reason of the rule, as given in 1 Greenlf. on Ev., 70, sec. 52, is, “ That such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rebut it.” He gives several instances in exemplification of the rule, among which, one is, that “Where the question between landlord and tenant was whether the rent was payable quarterly or half-yearly, evidence of the mode in which other tenants of the same landlord paid their rent was held inadmissible.”

We do not, however, sustain the action of the court simply upon the ground, that the facts offered were collateral or because they were subsequent to the attachment, but because they took place, not in the ordinary course of business, but under circumstances very different from those existing at the time of the occurrence of (he principal matter, and therefore they are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute.

We do not think the appellants are entitled to a reversal upon the ground taken in their sixth point.

Judgment affirmed.