Gottlieb v. Fred. W. Wolf Co.

23 A. 198, 75 Md. 126, 1891 Md. LEXIS 117

• Court: Court of Appeals of Maryland
• Decided: December 17, 1891
• Status: Published

Opinion

Irving, J.,

delivered the opinion of the Court.

Section 110 of Article IV of the Public Local Laws of the City of Baltimore, sub-title Courts, provides: “Bills of exception may be signed in any cause pending in any of ■said Courts, (the Court of Common Pleas, etc.,) at any time within thirty days from the rendition of the verdict of the jury or the findings of the Court upon the issues of fact in said cause,- but not thereafter, unless the time for signing said bill of exception shall have been previously ■extended by order of Court or by consent of parties.” The motion to dismiss the appeal in this case rests on the contention that the bill of exception wasjnot signed within a period of legal extension by order of Court as required by this law.

On the 23d day of April, 1891, before the expiration ■of thirty days from the date of the verdict, the Court .passed an order extending the time for signing -the bill of exception “to the 23d day of May, 1891;” and on the 23d day of May, 1891, the Court again extended the time for signing the exception to 23d of June, (1891). On the 19th of June, 1891, the Court further extended the time till the 29th of June, inclusive, and on that day it again extended the time until 11th of July; 1891, inclusive. On the 6th of July, 1891, the bill of exception was filed.

The appellee contends that when the order of the 23d day of May, 1891, extending the time for signing the exception until the 23d of June was passed, “the life of the preceding order had expired,” and the Court could not further extend the time. The order of the 23d of April extended the time “to” 23d of May, and whether the ■contention of the appellee is right depends on the proper construction of the word “to” in the connection in which it is used; namely, whether it is exclusive or inclusive of the 23d day of May. If the hill of exception could have been properly signed on the 23d day of May, of course, the order extending the time for signing the same was properly andlegally passed. The words “to,” “till,” and “until” are synonomous, and are sometimes-ambiguous and equivocal in the particular connection in which they occur, and are therefore construed as exclusive or inclusive, according as the subject-matter about which they are used may show the intention, in using the words, to-have been. This was the rule of construction which was-applied in Bellhouse vs. Miller, 4 Hurl. & Nor., 120. In that case an order was obtained protecting an insolvent debtor from execution “until the 29th of July next, ” and the Court held that the order gave protection on the 29th of July, and the word “until” was therefore construed inclusively. In Isaacs vs. Royal Ins. Co., L. R., 5 Exch., 296, 299, 300, the ruling in the Bellhouse Case (4 H. & N.,) was approved and followed, and an insTirance policy which protected against fire until the 14th of August, was held to cover a loss by fire on the 14th of August. The word “until” in that case being regarded as being intended to include the 14th of August. In King vs. Stevens and Agnew, 5 East, 244, et seq., Lord Ellenborough held the same rule„of construction applicable to the word “until” in an indictment. He said “that the words cto and until’ may he either inclusive or exclusive, according to the manifest intention of the jierson using them;” and as the “framer of the information” evident^ intended the word until to include the day named, it was held as used inclusively. In Thomas vs. Douglass, 2 Johns. Cases, 225, the Supreme Court of New York held the word “until” used inclusively in an order of the Court enlarging the time to plead until the second day of next term, and decided that a judgment for default rendered on the second day of the term was entered in error, because the party was, under the order, entitled to the whole of the second day to plead. In several of these cases the question has been fully and toell reasoned, and we approve both the reasoning and the conclusions reached. Very many other cases of like character and effect could be cited. Some have been cited by appellee where the contrary view has heen taken, and especially some in other States where the subject-matter was a bill of exception; but we think the cases •on which we rely are better reasoned, and the conclusions reached more in harmony with justice and right which always seeks to promote intention, rather than defeat it by being too technical. We may cite Hazlehurst vs. Freeman, 52 Ga., 244, 245; Kendall vs. Kingsley, 120 Mass., 94; Ackland vs. Lutley, 9 Ad. & El., 879; Bunce vs. Reed, 16 Barbour, 351; Dakins vs. Wagner, 3 Dowling, 535, in further support of our view. Walsh vs. Boyle, 30 Md., 266; Calvert vs. Williams, 34 Md., 672; and Stewart vs. Meyer, 54 Md., 464-5, tend to support the view we take.

We are all clearly of opinion that in passing the order of the 23d day of May, 1891, the Court acted within the authority of the statute. Upon that day a bill of exception might properly have heen signed, and if so the time for such signing could properly be extended. That the Court did so extend the time notwithstanding the very ■contention now made here, shows conclusively how the Court understood their own order, and in what sense the word “to” was used in it. It follows from what has heen said that the motion to dismiss must be overruled.

1. This suit was brought by the appellant to recover commissions for selling an ice machine for the appellee. It was brought as an attachment, and this proceeding is on the short note case, the declaration in which is on the common counts, and a special claim for commissions for selling a machine.

The facts of the case are substantially as follows: Frederick W. Wolf, manufacturing ice machines in Chicago in 1885, made the appellant his agent for selling his machines in the City of Baltimore, upon terms, about which they differ in their statements to some extent, hut not involved in the inquiries we are to make on this appeal. Afterwards, in March, 1887, this appellee was incorporated, and thereafter the business was conducted as a corporation, and the appellant was retained as its agent in the Oity of Baltimore. Before the formation of the corporation the appellant sold various machines to parties in Baltimore. At the time of the-formation of the partnership the commissions on several sales remained unpaid, which the corporation assumed to pay. After the incorporation the appellant claimed that he had sold a machine for the corporation, and it is for commissions for effecting that sale that this suit has been brought. A former suit was brought against the appellee, and in that suit a claim was set up for commissions on the same machine for commissions upon the sale of which the present suit is brought; but during the trial of the former case demand for commissions on the machine now involved was by leave of the Court formally withdrawn, and was not passed on by the jury, which was only asked for' a verdict for the other claims, which were for selling other machines for Wolf before the formation of the corporation. The withdrawal of the claim now sued for from consideration in that case seems to have been made necessary by the filing of an additional plea during the trial, by way of amendment, denying the corporation, for the purpose of defeating-this claim. All these facts and the pleadings and instructions in the former suit were put in evidence at the trial of this case. After the evidence was all adduced in this case, the appellant’s counsel offered three prayers, all of which were rejected; and the appellee offered hut one prayer, which was granted. It is as follows, and will now he considered:

“ The defendant prays the Court to instruct the jury, that the commissions for which the plaintiff recovered a judgment in the Superior Court of Baltimore City, and the commissions for which the plaintiff is suing in this case, are component items of one entire and indivisible indebtedness, and that their verdict must be for the defendant.”

• In granting this instruction the learned Judge of the Court of Common Pleas not only erroneously took on himself the functions of the jury, and decided that the claim here sued on and the one withdrawn from the consideration of the jury, by leave of the Court, in the former case, are identical, but was also in error in ruling that claims for which judgment was obtained in the former suit, and the one sued on in this action, “are component items of one entire and indivisible indebtedness.” The claims for which judgment was obtained were for commissions on sales effected by the plaintiff for Frederick W. Wolf, in his individual capacity, and which were assumed by the defendant corporation and recoverable by the plaintiff, who accepted the corporation as paymaster, on the principle of novation. The claim now sued on is for service rendered or commissions earned, as is alleged by the appellant, in making sale of a machine for the corporation. The claims were not indivisible in any sense, for they existed and were due, if due at all, in different rights. If the plaintiff had not accepted the agreement of the corporation to pay instead of Frederick W. Wolf, and thereby released Wolf by actually suing the corporation, he could have sued Wolf individually for what was due from him individually; but he could not have sued Wolf for what the corporation owed the plaintiff. The corporation only Avas ansAverable for that; therefore the corporation could have been sued originally in two suits, one for its own debt and one for the debt of Wolf it had assumed to pay; and when the plaintiff joined the two in one suit, it was perfectly competent for him, with leave of the Court, to amend or withdraw the claim for the corporation’s individual debt, as was done, and reserve that for a separate demand. It was only discontinuing his suit without prejudice, with leave of the Court, quoad that claim which was withdrawn. This, we think, is the established law in respect to distinct causes of action; and it is because we think the claims recovered in the first suit, and sued for in this one, are distinct causes of action, and therefore divisible, that we think there was error. Black on Judgments, in the very section, 134, relied on by appellee’s counsel, says, “that where claims are distinct, though all might have been recovered in the first action, it will not bar a second for one which was not demanded nor proven in the first. ” It is true that the claim now sued on was demanded in the first suit, and had evidence been offered as to it and the jury passed on it, the plaintiff would now be barred. But it was not proven. The amended pleadings disabled the plaintiff in the former suit from proving it; and he therefore, with leave of the Court, withdrew that demand; and it was no longer claimed, or offered for proof in that cause and the jury did not pass upon it.

That which was done in the former suit was done in Killion vs. Wright, 34 Pa. St., 91, and the Supreme Court of that State stated the law applicable to such case so concisely that we quote its language: “Many claims may be joined in one action, and if, for such, separate suits be brought, the Court may order them to be consolidated. But if the claims be counted on separately, they are separate causes of action, and a suit for one is no bar to a suit for another. And as a plaintiff is not hound to count for several claims in one action unless on an order to consolidate, so when he does so count, he may, with leave of the Court, withdraw one of them, and then it stands as a claim not sued on and may he the subject of a future action.”

(Decided 17th December, 1891.)

In Wood, et al. vs. Corl, 4 Metcalf, (Mass.) 205, the ndte sued on had once been counted on in a suit which had proceeded to judgment. But before the case was closed this note was, by leave of the Court, withdrawn, and judgment rendered only for another note. Chief Justice Shaw in delivering the opinion on this branch of the case, said: “ This was equivalent to a discontinuance, by leave of the Court, as to this note, and such discontinuance is clearly no bar to another suit for the same cause of action.” Many other authorities might be cited, but we deem others unnecessary, as the law is so clearly stated in those to which we refer.

The granting of the defendant’s prayer necessitated the rejection of all the plaintiff’s jn’ayers, and we must now examine them and see if they are right, as we have found the appellee’s to have been wrong. The first prayer of the appellant appears to us to present his case properly to the jury. We have been cited to no particular infirmity in it, and we see none. It ought to have been granted. The first prayer being granted the second was unnecessary; and if the first had been granted the rejection of the second would not have been condemned. We see no error in the rejection of the third prayer. The first prayer is all that the appellant needed to put his case before the jury for their verdict on the facts as given them in evidence.

The judgment must be reversed, and a new trial must be awarded.

Reversed, and new trial ordered.