Mitchell v. Mitchell

10 Md. 234

• Court: Court of Appeals of Maryland
• Decided: December 15, 1856
• Status: Published

Opinion

Mason, J.,

delivered the opinion of this court.

The plaintiff, to show the annual profits of the land, offered to prove by Mr. Jenkins, who lived upon the adjoining farm, the amount of net profits which his farm yielded. This testimony was objected to, and rejected by the court, and this forms the first exception. This testimony, a majority of the court are of opinion, was properly refused for the reason assigned, upon an analogous point, by this court, in the case of Keedy vs. Newcomer, 1 Md. Rep., 251, namely, “that it is no very unusual thing, that thriving and industrious farmers find themselves neighbors to those who are not so distinguished for those qualities,” and hence wdiat one man might make upon his farm, would be no criterion as to what his neighbor has made, even conceding the quantity and quality of the land of each to be equal, which is by no means universally true.

Upon the question of limitations the courtis equally divided, and therefore the judgment of the court below must be affirmed upon the second exception.

The proposition submitted by the plaintiff’s counsel in the third exception, namely, to make the taxes, &c., a charge upon the profits of the years excluded by limitations from the recovery, was doubtless intended to be a recognition of the principle asserted in the case of Ewalt vs. Gray, 6 Watts, 427. We think, under the decisions of this court, the circuit court could not have done otherwise than reject the prayer; for conceding the principle announced in it to be correct, yet it was defective in assuming the existence of profits during the years barred by limitations. The finding of the fact, whether or not there were profits, should have been left to the jury. Upon this point see the cases of Crawford vs. Berry, 6 G. & J., 63; Balt. & Susq. R. R. Co. vs. Woodruff, 4 Md. Rep., 242; Boyd vs. McCann, Ante, 118; and other cases.

Judgment affirmed.