Crichton v. Smith , 1871 Md. LEXIS 31 ( 1871 )

Brent, J.,

delivered the opinion of the Court.

As was intimated at the argument, we entertain no doubt, that this appeal is properly before the Court. The case before the Supreme Bench of Baltimore City was solely upon the motion by the defendants, who are the appellants here, for a new trial, which motion that Court alone was authorized to hear under the then provisions of the judiciary system for Baltimore City. The party making the motion had, at any time, the right to withdraw it by leave of the Court, and this having been done, the question was as effectually settled in that Court as if it had been heard and decided. The original papers, which had been transmitted under the rules, read by agreement upon the motion to dismiss, were then rightfully returned to Baltimore City Court, where the trial had taken place and from the latter Court only could the record come up. We find no irregularity in the entry of the appeal, or in the filing of the bills of exceptions certified to us as a part of the record. If the rules of the Supreme Bench of Baltimore City conferred the right to use them upon a motion for a new trial, it cannot be admitted that they could not therefore be used upon an appeal to this Court. The motion to dismiss will be overruled.

The questions presented upon this appeal are raised by two exceptions, and relate to the admissibility of certain evidence offered at the trial below. The suit was instituted to recover damages for the alleged breach of a charter-party, which the appellees aver in their declaration, was entered into between the appellants and the master of the Schooner “Union,” a vessel belonging to the appellees and for whom, the master, in the making of said charter-party, acted as agent. The first exception is taken to the ruling of the Court in allowing a paper offered by the appellees, and purporting to be the charter-party, to be read in evidence to the jury, upon proof that the identical paper had been produced and used by the appellants, as the charter-party between the parties to this suit, in a certain other cause depending in the District Court of the United States for the District of Maryland.

The paper having been exhibited and used by the appellants, in a former suit, as the true and genuine charter-party between the parties to this suit, was certainly an admission of the strongest character in favor of its authenticity, and we cannot perceive how the Court below could,Lave done otherwise than allow it to be read in evidence. The objection, that it does not appear to have been used in a case between the same parties, is not within the principle upon which it is admissible. It is immaterial whether the parties were the same or not. The paper, as offered, is not competent evidence from any privity of parties in that cause, but from the admission of the appellants, by its production and use, that it is the agreement which they had entered into with the appellees.

The ease of the Philadelphia, Wilmington and Baltimore R. R. Co. vs. Howard, 13 How., (S. C.,) 332, is a direct decision upon the point, if any authority is needed to support so plain a proposition. It is also objected that this paper is inadmissible, because its terms are not set forth in the declaration with sufficient certainty and precision. Our system of pleading does not require more than a substantial description of the cause of action, and this lias been given in the declaration before us. The charter-party declared upon is described as having been entered into between the defendants and the master and agent of the Schooner “Union,” — and its alleged breach is a failure to furnish the vessel with a cargo of guano at the island of Rodonda. The paper offered in evidence fully corresponds with this allegation. The parties are the same, and the defendants agree by its terms to furnish the vessel with a cargo of guano at the island mentioned. The objection furnishes no reason why the proof as offered should have been rejected. The admission by the defendants, that the paper was the agreement of the parties in this suit, was sufficient under the pleadings to allow it to be read in evidence to the jury-

This exception' does not present the question, whether the charter-party alluded to, after being admitted in proof, is to be considered only as prima facie evidence, or whether the appellants, by their offer of it in another' suit, were estopped from offering proof that it was not the charter-party into which they had entered. The only question upon this exception is its admissibility as evidence. If it was admissible for any purpose, it was rightfully allowed by the Court to be read to the jury.

The second exception is to the ruling of the Court in rejecting the deposition of Barnabas Bray, offered by the appellants. The objections to its admissibility are many. As a deposition it could not be read, because it was taken before a Commissioner of the United States, and not in accordance with any provision of the laws of this State. If it was offered as the testimony of a witness in a former suit between the same parties — the proper foundation was not laid for its introduction. No evidence was offered that the witness could not be reached by the process of the Court. If dead, or beyond the United States, proof to that effect should have been furnished. If he was a resident of another State, his testimony could have been procured under a commission for that purpose, issued from the Court in which the case was pending. • The offer of the papers in the case, already alluded to as having been pending in the District Court of the United States for the District of Maryland, was also properly rejected. There is nothing in the record to show that they had any relevancy to the issues in this case, and as it is stated in the exception that they were offered “in order to introduce the deposition of Barnabas Bray,” they were clearly inadmissible for any such purpose.

(Decided 10th February, 1871 )

As the rulings in both of the exceptions are without error, the judgment of the Court below will be affirmed.

Judgment affirmed.