Oelrichs v. Artz , 21 Md. 524 ( 1864 )

Bartol, J.,

delivered the opinion of this Court:

This case was argued in connection with the case of Oelrichs & Lurman vs. Ford, and involves some of the same questions decided in the other case.

At the trial six bills of exceptions were taken by the apappellants, who were defendants below. Of these, the first, third, fourth and fifth, present the same points as the first, second, third and fourth exceptions in Ford’s case, and for the reasons stated in the opinion therein filed, the rulings of the Superior Court on these exceptions will be affirmed.

The second exception. The tender of 500 barrels of flour in pursuance of the contract in this case, was made to the defendants, on behalf of the plaintiffs, by the witness John H. Fowler, the clerk of Fowler & Zeigler, in whose warehouse the flour then was. In answer to the question of the plaintiffs,.if he knew the flour tendered to be the plaintiffs’ flour, said, ‘ ‘he did not know any thing of it himself, but was informed by Mr. Fowler, of the firm of Fowler & Zeigler, that it was the plaintiffs’ flour, and was told to fender it as such,” and to the admission of this statement by the witness, which was objected to by tbe defendants, ibis exception was taken.

The objection made to this testimony by the appellants in tbe argument, was that the declarations of Mr. Fowler were mere hearsay, and, if the fact was material, it ought to have boon proved by Mr. Fowler himself. And further, that it was material to prove" that the flour tendered belonged to the plaintiffs, or was under their control and subject to their order. Fowler was a stranger to the contract, and had no right to offer to perform it on the plaintiffs’ part, unless by their authority.

These objections are well taken, and would be fatal if this evidence stood alone. But it appears from the same bill of exceptions, that on the 26th, 28th, 29th and 30th of January 1856, a tender was made of the Hour on behalf of the plaintiffs by their attorneys, to Mr. Frick; the attorney of the defendants, to whom they had been referred by the defendants. That the Hour tendered was stated to be in tbe warehouse of Fowler & Eeigler. And that Mr. Frick on each occasion declined and refused to accept the flour on behalf of the defendants, on the ground that the contract was at an end. This was a waiver of any further tender, and the testimony of John IT. Fowler, was immaterial, could do no injury to the defendants, ami its admission, a majority of the Court think, is no ground for a reversal of the judgment.

The sixth exception was taken to the refusal by tbe Court to grant an instruction tv) the jury, asked for by the defendants, declaring Joseph Newcomer to be a necessary party plaintiff. This prayer was based upon the testimony of Newcomer, to the effect that the plaintiffs had agreed to let him have an interest in the contract. This agreement was made after the contract had been made by Bell with the defendants, and reported to the plaintiffs by Bell.

The right of the plaintiffs to sue, grows out of the fact that the contract was made, on their behalf, by Bell as their agent. The action is brought upon the contract of the 24th of November' 1855. Newcomer was no party to that contract, and had no interest in it at the time it was made. Whatever interest he afterwards acquired, under his agreement with the plaintiffs, was as assignee; and it would be a mis-joinder to make him a plaintiff jointly with the original promisees in an action on the contract.