Carroll v. Ridgaway , 8 Md. 328 ( 1855 )

Le Grand, C. J.,

delivered the opinion of this court.

This is an action of assumpsit, instituted by appellee, to recover compensation for services alleged to have been rendered to the appellant, and for money laid out and advanced for him at his request. Issue was joined on the pleas of non assumpsit and limitations. In compliance with a demand for a bill of particulars, the appellee furnished the one in the record.

The plaintiff, after giving evidence of the services, &c., rendered by him at Poplar Island, proved by William S. Ridgaway, “that in June 1850, the defendant, in company with James Smith and James Treakle, came to Poplar Island, and that during said visit, defendant exhibited to witness various accounts and vouchers referring to plaintiff’s and defendant’s affairs; that one of said accounts was in a book, that all the charges were together and all the credits were together, forming one general account; that the last item on the debit side of said account was for services, but no .amount was extended; that independent of said item for services, there appeared to be a balance in favor of plaintiff of about $70 or $80, which Col. Carroll said was right. One of the credits upon said account was the rent of the farm for 1849; the plaintiff said in relation to the item for services, that as the mill had turned out unprofitably, he thought Robert, the plaintiff, would not charge him anything; that if the mill had turned out profitable, he would have been willing to pay a large salary; that there was a charge in said account for money paid to Socrates Ridgaway for services in attending to the saw-mill, &c., which was at the rate of $300 per year; that defendant said that charge was right, and that he did not think Robert’s charge ought to be more than at that rate, and that he, defendant, would not be willing to pay plaintiff more than at the same rate paid Socrates Ridgaway. ’ ’ After the introduction of this testimony, the defendant proved certain accounts, which were offered in evidence, to be in the handwriting of the plaintiff, and also that the witness, William S. Ridgaway, had said to persons, who testified to the fact, that the plaintiff, while in charge of the farm at Poplar Island, had managed things badly. In addition to this testimony, the defendant proved by J. T. Sherwood, that in the fall of 1849, in October or November, and a very short time before plaintiff gave up the farm on Poplar Island, he was called upon by plaintiff to act as arbitrator in the settlement of some difference between the plaintiff and his mother; that upon that occasion, the plaintiff stated to witness that he, the plaintiff, was then indebted to defendant to the amount of $200; that the said witness’ impression is, that it was on account of rent; that said plaintiff stated, that he has paid the defendant $200, and that there was at that time a balance of $200 due defendant, and that the said witness and the other arbitrator allowed plaintiff to retain a quantity of wheat to pay said balance; the said witness also proved, that said plaintiff did not, to his knowledge, state that the said balance of $200 was due defendant on account of rent for the farm for the year 1846.” After this testimony, the plaintiff recalled the witness, W. S. Ridgaway, who proved, “ that he was present at the conversation between tíre plaintiff and Sherwood, and that said plaintiff said that the said sum of $200 was due to defendant on account of rent for 1846, and that the plaintiff had not paid any of the rent for 1846, and that on the said account examined by Col. Carroll, in June 1850, there was a credit for this $200 for rent for 1846.”

The plaintiff then offered in evidence a letter from the defendant to the plaintiff, dated the first day of February 1847, “for the purpose of rebutting the evidence of Sherwood as to the admission of the plaintiff touching the indebtedness of $200, and for the purpose of corroborating the testimony of William S. Ridgaway, that said admission of plaintiff proved by Sherwood was in reference to a balance of rent due for the year 1846.” To the admissibility of the letter in evidence the defendant objected, but the court overruled the objection. This ruling of the court constitutes the first exception.

The letter contains reference to several matters unimportant to the present inquiry. The only pail having any bearing on the question now presented is in these words: “ I did not want you to pay up the whole rent for the last year, or any arrears, if any, but to keep it to pay for hands cutting wood, shingles, digging well, cutting down timber for the mill, (which should be done in the dark of the moon in February.”)

It was competent to thé plaintiff to have offered the letter generally as evidence in the cause, and to have argued from it before the jury. The distinction between offering evidence in the cause and for a specific purpose, is recognised in a great number of cases. Sothoron vs. Weems, 3 Gill & Johns., 435. Goodland vs. Benton, 6 Gill & Johns., 481. Keller vs. Donnelly, 5 Md. Rep., 271. Whether or not the letter of the defendant was competent evidence to rebut the testimony of Sherwood, it certainly was admissible to corroborate that of Ridgaway; and in the case of Pegg, et al., vs. Warford, 7 Md. Rep., 606, this court held, that Avhere testimony is offered for several purposes and it be admissible for any one of them, a general objection will not be sustained, such an offer being regarded as a general offer, and as such, is good. In the case last alluded to, this court said: “But it has been said, that as this evidence was received for ail or either of the three purposes for which it was offered, unless it was legally applicable to each, the jury might have been misled and applied it to one of the purposes to which it did not relate. To avoid such a result, it was the duty of the counsel objecting to have pointed out specifically the purpose to Avhich the testimony had no legal application, and to ask its exclusion for such purpose.” We think the court properly overruled the objection.

The defendant presented five prayers, all of which Avere rejected. Their rejection constitutes the second and third bill of exceptions. All these prayers relate to the plea of limitations, and were, with the exception of the fourth, in our opinion, properly rejected.

With the exception of the fourth, they are founded on the hypothesis, that even if the jury believed the testimony of the witness, William S. Ridgaway, but also believed the services AArerc rendered more than three years before the institution of this suit, then there Avas no evidence to take the case out of the statute. Some of the prayers apply to the whole claim; some to all of it but the services bestowed on and about the mill; and others to the supposed want of proof of assumption of debt or promise to pay.

The evidence of the witness, Ridgaway, if believed by the jury, was sufficient to relieve the case from the bar of the statute. The defendant — at least so far as the testimony of that witness is concerned — not only did not deny, but conceded, the services had been rendered. He thought, and so expressed himself, that the charge was too great, because the mill had not turned out profitably. In other words, he but expressed the opinion, that the charge was too high under the circumstances, and his unwillingness to pay so large a claim. This is the real substance of his conversation, as testified to by the witness.

The fourth prayer ought to have been granted. It merely declared the claim to be barred by the statute, unless the jury should find from the evidence “an assumption or promise by the defendant, within three years before the bringing of this suit, to pay for said services.” By rejecting all the prayers of the defendant, the jury were left without any instructions whatever in regard to the law. The fourth prayer of the defendant was, in substance, identical with one held to be good in Duvall vs. Peach, 1 Gill, 181.

We think the court erred in refusing to allow the book marked “ C ” to be read to the jury. It was produced, in compliance with a notice served on the defendant by the plaintiff, and was proved to be in the handwriting of the latter. It professed to contain the account between the parties, and the defendant was surely entitled to its use, precisely as he would have been entitled to that of any other memoranda of plaintiff relating to their dealings.

Judgment reversed and procedendo awarded.