Adkins v. Hastings

114 A. 288, 138 Md. 454, 1921 Md. LEXIS 99

• Court: Court of Appeals of Maryland
• Decided: May 5, 1921
• Status: Published

Opinion

Adkins, J.,

delivered the opinion of the court.

A motion wás filed to dismiss the appeal in this case

“because the bills of exception were not prepared and submitted to the msi prius court within twenty days from the rendition of the verdict in this case as provided by the rules of court for the First Judicial Circuit of Maryland, and were not signed by the nisi prius court and filed by the appellant in this case within the time allowed by the special order made by the nisi prius court in this case, extending the time within which bills of exception could be filed.”

The rule referred to requires that:

“The party taking the exception note the same at the time of the ruling made, and thereafter within a reasonable time after the trial, reduce the exception to proper form in conformity, to the rules presented by the Court of Appeals for the regulation of appeals, and submit the same to the judge or judges for his or their signature; provided, however, unless otherwise expressly allowed by this court, the bills of exception shall be prepared and submitted to this court within twenty days from the rendition of the verdict.”

The verdict was rendered on September 14th, 1920. On October 2nd, 1920, time- for filing bills of exception was extended to the first day of November, 1920:

It appears by the affidavits of Thomas IT. Lewis, Jr:, attor-. ney for appellant, and his stenographer, Ida Lee Taylor, the hills of exception were prepared and delivered at the office of Judge Bailey, one of the judges of -said court, on the- first day of November, 1920, and on the same day a copy of them was left with the attorneys of the appellees. This is not denied, and it appears from the record that the bills of exception were signed on the 2nd day o'f November, 1920, but they do not'appear to have been filed in the clerk’s office until November 15th, 1920.- It is not apparent to us why the delivery of them to Judge Bailey, on November 1st, 1920. was not a sufficient compliance with the rule and the order of October 2nd, as the requirement of the rule ia submission of tbe bills of exception to the judge within the time provided, and not necessarily that they be filed in the clerk’s office by that date; and the order of October 2nd, extending the time for filing until November 1st, was in effect an extension of time for submission to the judge.

But even if this were not so, it appears from the affidavit of Judge Bailey that, on October 29th, 1920, he signed another order extending the time for filing, hills of exception to the 15th day of November, 1920', which order was with his consent left with him for filing, but through inadvertence on his part was not filed by him with the clerk of the court, but. was retained by the Judge in hisi chambers until the 2nd day of February, 1921, when by an order of that date it was filed by the clerk nunc pro tunc as of the 29th day of October, 1920. The motion of ne recipiaiur as to the orders of October 29th, 1920, and February 2nd, 1921, and tbe motion to dismiss the appeal, are overruled.

This appeal is from a judgment for $396.28 in favor of the appellee against the appellant on an open account for merchandise alleged to have been sold by appellee to the wife of appellant at his request.

There are four bills of exception, three are exceptions to' rulings of the trial court on evidence, and one on prayers.

The first exception is to permitting, the clerk of appellee who kept the hooks of the business to read from the book, in which, he testified he made the entries in the regular course of business at tbe times the sales were made, items of the account. Before reading these items, the witness testified that a few of the goods charged were delivered to appellant himself but the bulk of them to the wife; that the goods, were all such as were ordinarily used in families in like circumstances with defendant, and that he had requested witness to give credit to his wife, as he did not. know what the family needed.

The following questions and answers preceded the reading of the items: “Q. How1 do you keep a record of these sales? A. Sometimes they were put down by items and sometimes in a whole. Q|. You mean you kept a book account of it? A. Yes, sir. Q. Were those entries made by you at the time of sale A. Yes, sir. Q. Did you have the book ? A. Yes, sir; there it is. Q. Is this the book in which you made the entries? A. Yes, sir; that is the book. Q:. And these entries in the book were made by you in every instance when the sales were made? A. Yes, sir1. Q. You were present when the sales were made? A. I done it. Q. You sold the goods yourself ? A. Most of the time. Q. Is this book you refer to the book you used in the regular course of your business? A. Yes, sir.”

Now it will appear from the above that the witness either made the sales himself or was present when they were made, as he says he made most of the sales and that all the entries were made by him at the times of sales, so that he must at least have been present. In these circumstances it is presumed that he knew the entries were correct at the time they were made, and the ruling of the court in permitting him to read the items from the book was in effect deciding that he could refresh hisi recollection by referring to the book. The law on this subject is too familiar to require the citation of authority. We find no error in this ruling.

In any event this exception is unimportant if the book itself was properly admitted in, evidence, as was afterwards done over the objection of appellant. This is¡ the ground for the second exception.

It is objected that the witness did not testify in so mamj words that the entries are correct and accurate, and that he made the entries in accordance with the truth of the matter’s as he knew them to exist at the time he made the entries; and further that it does not appear that the witness had personal knowledge of all the sales.

In view of the testimony above quoted we do not think any of these objections are valid. When the witness testified he made practically all the sales and made all the entries coincident with the sales, that fixed his presence and knowledge of the transactions, especially a,s he said explicitly on cross-examination “I know I delivered the stuff to her,” and it will not he presumed that he made false or inaccurate entries when an opportunity was given to test him on cross-examination and nothing was brought out to justify such a presumption. “When the alternative is as to1 whether the act is rightful or wrongful, the act being one that may he either, according to its environments, and there is nothing to show that it is wrongful, the natural and the! general presumption founded on observation and experience, is that it was rightful.” Brewer v. Bowersox, 92 Md. 574.

In what we have said above, we do not mean to decide that under modem conditions of doing business, it would now he required that a bookkeeper who made the entries must have had actual knowledge of the facts which he recorded before his books could be admitted in evidence, where the entries were made contemporaneously and in due course of business. This question was expressly reserved in Marine Bank v. Stirling, 115 Md. 90. A strict enforcement of such a requirement would make impracticable the proof of most accounts of large mercantile establishments.

It is also objected that the hook should not have been admitted because it does not show with sufficient particularity with what the defendant is being charged; that the entries are not explicit enough to constitute an “account.” This objection is based on the fact that the items charged are frequently described as “goods,” “groceries,” “meat,” “apples,” and the like, without giving the quantity or specifying the kind of goods with particularity. But “the mere fact that the measure, weight, and quantity are not given in connection with the items will not render the account inadmissible.” 22 Corpus Juris., sec. 1049; Hooper v. Taylor, 39 Maine, 224; Pratt v. White, 132 Mass. 477; Jones, Evidence (2nd Ed.), see. 570. Besides the; witness testified that the wife of appellant had a hook in which the sales to her weré entered, so that she also had an account of them. This hook was produced hv appellee but was net admitted in evidence by reason of objection by . appellant. We find no error in this ruling.

The third exception is to the refusal of the court, on objection, to permit the witness under crossi-examination by appellant’s attorney to answer the question: “What is the rate of your compensation ?'” We find no reversible error here. This is the same witness who made and testified to- the entries in the book. The four questions and answers immediately preceding the questions objected to were as follows: “Q. Mr. Hastings-, what is your relation to this business of your father’s? Isn’t he your father? A. Yes, sir. Q1. What is your relation to his business? A. Only the clerk. Q. How long have you been clerk there? A. Twenty-five years. Q. How are you paid? A. Paid with money.” The purpose of the question to which the objection was sustained, as disclosed in his brief and oral argument by appellant’s attorney, was to discover whether1 the clerk was paid a commission on sales and to that extent interested in the businessi, with the view of making the contention that he had such an interest in the business as to exclude from evidence the book containing the entries made by him; or’, if that argument should fail, to show that he was an interested witness and thus affect the weight of his testimony. But the question itself does not disclose its purpose. The court could not tell what was meant by the “rate of compensation.” It might just as well have applied to the amount paid per year or per month. The record does not show that either the purpose was made known to the court or that there was any offer to prove that the witness was interested in the business in any other way than as a clerk working on- a regular salary. There is nothing in the form of the question to show that it was admissible for any purpose.

The fourth and last exception is to the ruling of the court on the prayers, which will be set out in full by the reporter.

The court granted plaintiff’s prayer and refused the three prayers offered by the defendant. So far as the first and second objections of defendant to plaintiff’s prayer are con cerned, viz: that it ignores undisputed testimony of plaintiff’s own witnesses on certain propositions, if the objection is meant to be that the propositions in question are without evidence to support them, such objections on appeal cannot be considered in the absence of special exceptions in writing submitted to the trial court; and the record discloses no such exceptions. We do not mean to say, however, that under the facts of this case the prayer was open to such objections) even if special exceptions had been filed.

The third objection is that the prayer does not correctly state the propositions of law involved; that it incorrectly fixes the measure of damages; that as a whole the prayer is complicated, involved, indistinct and uncertain.

As to the. prayer being complicated, if it is open to such a criticism, it is because it imposes upon the plaintiff unneces.sary burdens, and such a defect is not one to which the defendant could object. It requires the jury to find not only that the articles sold were necessaries, and that as to such necessaries the wife had implied authority, but that “the defendant, prior to the purchase of the goods, the price of which is sued for in this case, went to the store of the plaintiff, and in the presence and hearing of the plaintiff, told the plaintiff’s clerk and bookkeeper that he wanted them to let his wife have whatever gpods she ordered as. he didn’t know what was needed in the family, and that in pursuance, of this general order and direction from the defendant to the plaintiff, the goods, the price of which is sued .for in this case, were sold and delivered to the defendant’s wife.”

As to the statement in the prayer that if the jury find the> facts set out in the prayer, “the defendant is legally responsible to the plaintiff for the price of the goods sold-and delivered to his wife,” it is to. be noted that this expression -is followed immediately by the words “and their verdict, must, he for the plaintiff for the value of the govSs so sold and delivered.” These words serve to qualify those immediately pre^ ceding'and fix the prices charged as the measure of damages, provided tlie jury' find such prices' to he-1h.é'value of the goods. But apart from this it isi presumed when people go to a store to buy goods they ask the price of them, and that the price charged is the price at which the goods were sold, where the books are so kept as to be admissible in evidence.

The value of an account is prima, facie the face value. Sedgwick on Damages (9th Ed.), Vol. 1, p. 521, see. 258. Besides in this case the uncontradicted testimony is that the wife of the defendant had a book in which the entries of purchases were made, and must have known the prices charged at or about the time of the sales. We find no error1 in the granting of this prayer. It follows that defendant’s third prayer was properly refused.

His first prayer asked for an instructed verdict, and could not have been granted without ignoring the evidence of plaintiff and his clerk.

Defendant, relies upon the case of Jones v. Gutman, 88 Md. 355, to support his second prayer. In that case it was held that a prayer which sought to have the jury instructed “that the burden is on the plaintiff to show that the defendant refused to support his wife or failed to make her an adequate allowance,” should have been granted. The difficulty about defendant’s second prayer in thei case at bar is, that it makes the right of plaintiff to recover to' depend upon his proving by a preponderance of evidence that the defendant refused and failed to support his wife or failed to make adequate provision for her procuring necessaries suitable to her station in life, and that the goods charged in the account were necessaries and suitable; provided only the jury find that the defendant did not authorize his wife to' purchase the goods, or plaintiff to charge them to him. This ignores the implied authority which the jury might have found from all the circumstances of the. case. “If the parties live together and it be not shown that the husband has failed to provide her with a suitable maintenance and support, the presumption of her authority is one of fact to be finally determined upon all the circumstances of the case. The husband can then rebut the presumption that arises from the fact of cohabitation by show ing that the purchase was made without his authority, real or apparent; and without his subsequent, assent.” Jones v. Gutman, supra.

Both plaintiff and Ms clerk testified that statements were mailed to defendant from time to time. Plaintiff also said his name and address were on the outside of the envelopes; that he had also sent one or two statements by the wife; that he didn’t know whether they were delivered or not, but they weren’t returned to him.

As the prayer goes to recovery and does not submit to the jury all the circumstances, of the ease, it was properly refused.

Finding no error in any of the rulings of the trial court, the judgment will he affirmed.

Judgment affirmed, with costs to appellee.