Roberts v. Woven Wire Mattress Co. , 46 Md. 374 ( 1877 )

Stewart, J.,

delivered the opinion of the Court.

The admission of the letter agreed to have been signed by Perkins, secretary of the appellee, hearing date October 7th, 1871, addressed to Henry T. Roberts, was the ground of appellants’ first exception.

This letter per se, and without further proof or statement that it was to he followed up, was inadmissible; hut when in the further progress of the case, it was proved by Stovie, the witness, that the letter was mailed, it was admissible, as purporting to give notice to the appellant of his brother’s defalcation..

Its admission under the circumstances, affords no valid ground for the reversal of the judgment, as no injury was done to the appellant. See Wyeth vs. Walzl, 43 Md., 426.

There was no error in the second exception admitting the record of the judgment of the appellee against M. Roberts.

The appellant, the surety, being no party to the judgment, that, of course, furnished no evidence against him per se; and unless shown to be on account of matters connected with his guaranty, was not admissible. The act or admissions of his principal could not hind him as the surety without such connection.

But the record of the judgment, including the declaration and account of the appellee, upon which the judgment v;as rendered, having been admitted by the agreement of the counsel filed since the argument of the case, that shows a liability embraced by the guaranty of the appellant. The record was admissible as prima facie evidence for that purpose. Iglehart vs. State, 2 G. & J., 235.

The admissibility of the letter, the signature to which is conceded to be that of M. Roberts, addressed to the appellee, bearing date April 26th, 1870, and produced by the appellees, is the ground of the third exception.

The letter referred to events to occur in the future, stating the intention of M. Roberts to take the agency of the appellee for the State of Maryland, and that his brother would be offered as surety for the performance of his obligations. As a preliminary step towards a final arrangement, if made out to the satisfaction of the jury from all of the testimony, between his brother and himself and the appellee, it was a constituent part of the res gestae of the transaction, and there could be no reasonable objection to its admission, and the Superior Court committed no error in so ruling.

We discover no principle of the. law of evidence that will admit the letters offered in proof, in the fourth exception, by the appellee, as competent to prove that H. T. Roberts was cognizant of the matters stated therein. The letters having been read to the jury by the appellee, without objection or statement of the purpose, after the limitation of their effect upon the objection of the appellant, it was not the province of the Court sua sponte, to undertake to define any other purpose for which they might be used. Whether they had any other pertinency to the case could be determined by the jury, if the appellant did not think proper to ask to have them withdrawn.

The point is rather immaterial. The rulings in this exception must be affirmed.

The granting of the appellee’s prayer, and the refusal of the appellants’ first, second, third, fifth, seventh and eighth prayers, constit'uté the fifth exception.

There is no doubt 'it- was the duty of the appellee to give reasonable notice to the appellant, of any defalcation on the part of M.'Roberts, whose faithful conduct he had guaranteed. '

After the Court.', had instructed the jury, that such notice was necessary, it was their province to determine whether such reasonable notice was given. It was the prerogative of the. :Court to define the character of the notice, and the duty of the jury to determine from all the facts if the notice - had been given, and such as was reasonable under all the circumstances.

Especially after' the appellant had the benefit of his fourth and sixth prayers, we do not see upon what principle he has any valid ground of complaint.

The appellee’s prayer was properly granted.

The first, second and seventh prayers of the appellant involving modifications of the same question were properly refused. There is no doubt of the law, that if the guaranty was subsequent to the contract between M. Roberts and the appellee, and formed no part of the consideration thereof, it required a distinct consideration to give it efficacy as a collateral undertaking ; but the terms of the guaranty expressly refer to the agreement made with the appellee by M. Roberts, to act as their agent to transact the sales of the company to the best of his ability, and to make returns for such sales to the company for the previous month on the 15th of each month ; showing the agreement to have been executory in its character, embracing prospective dealings between M. Roberts and the appellee ; purporting upon its face and by necessary construe^ tion a sufficient consideration, and is clearly within the principle decided in the case of Hutton vs. Padgett, 26 Md., 228, and reiterated in the recent case of Deutsch A Co. vs. Bond, ante 164.

(Decided 8th March, 1877.)

The appellants’ third prayer was properly refused.

If the guaranty offered in evidence referred to in this prayer, was signed and delivered to M. Roberts the agent of the appellee, and was in his possession and produced by him, that was sufficient prima facie evidence iu the absence of any proof to the contrary, of the delivery and acceptance of the contract of guaranty ; and other notice of its acceptance was unnecessary unless there had been a stipulation to that effect. Union Bank of Maryland vs. Ridgely, 1 H. & G., 324.

The appellant had substantially the benefit of his fifth prayer in the granting of his fourth and sixth prayers, so far as any failure to give notice to the appellant, of any default of M. Roberts was concerned.

The failure to give appellant notice of M. Roberts’ default, and permitting the agent, M.- Roberts, to make returns in a manner different from the terms of the contract, could not afford sufficient evidence of the abandonment of the contract and the substitution of another, and such conclusion should not have been submitted to the jury The prayer was properly refused.

The appellants’ eighth prayer was properly, refused. There was no sufficient evidence of such violation of the contract on the part of the appellee, as totally to preclude the appellee from recovery thereunder.

Judgment affirmed.