Stoner v. Devilbiss

16 A. 440, 70 Md. 144, 1889 Md. LEXIS 19

Opinion

Irving, J.,

delivered the opinion of the Court.

The appellee sued the apjjellants, executors of David Eoutz deceased, for services renderedthe deceased, David Foutz, in his life-time from the year 1862 to 1881. The account exhibited and passed by the Orphans’ Court is for $100 per annum for the period named, or $2,500. The declaration says the plaintiff sues the executors of David Foutz “for money payable by the defendants’ testator to the plaintiff for goods bargained and sold by the plaintiff to the defendants’ testator;” then follow counts for work done, and materials provided at the request of defendants’ testator, for money lent, and the other money counts.

To this declaration a demurrer was entered, the sole ground of which is that the declaration' sues “for money payable by the defendants’ testator,” and not for money payable by them as executors. We do not think this objection substantial. The 96th sub-section of section 22 of Article 15 of the Code of Public General Laws is in these words: “Causes of action may be stated against executors and administrators in the same manner as if they were the original parties thereto, except that proper words must be used to show that the claim was against the deceased.in his lifetime.” No form for making such statement is given in the Code, as is given for other cases. It is permissible, therefore, to state the cause of action as if the executors were the original parties, if the pleader uses words of explanation showing that it was really a claim against their decedent in his life-time; but it is not made obligatory to so state it. Here the cause of, action is set out as one existing against the deceased in his life-time, and it is done in the old way of making such statement. 2 Chitty on Pleading, 112. If a good cause of action existed against the appellants’ testator in his lifetime, and the same was undischarged, the law threw upon them the obligation of paying it, and we think a claim against them as executors is sufficiently stated in this declaration. The demurrer was therefore properly overruled. In Merryman vs. Rider, 31 Md., 98, the declaration was like the present declaration, only it omitted the words, “for money payable,” which the Court said was fatal, and for that reason the narr. was held to be defective, and for none other.

Charles S. Devilbiss, the father of the plaintiff, having testified to certain services of his son for appellants’ testator from 1862 to 1867, and from 1870 to 1887, and to certain declarations of the deceased supposed to indicate a recognition of indebtedñess, such as “ John I Avon’t be "able to pay you until I declare a dividend” or “make a dividend,” and “you must bring in your hill against my estate,” &c., he was asked, “do you know the value of the services which your son rendered to David' Foutz from 1862 to 1867, and from 1870 to 1887, which you saw and knew of, and to which you haAm testified?” To this question the defendants excepted, and the same being overruled, it forms the subject of the first and second exceptions.

The appellants contend that as the'Avitness said he did not know iuliat they were doing when he saw the deceased and his son at the desk, and he Avas not told, because he said “his son Avas sworn to secrecy,” it was in the nature of things impossible for him to put a valuation on the services rendered. It is very certain he had a very slender basis on which to rest his judgment and estimate of the value of his son’s services, and for that reason his opinion might be of little worth in the opinion of the jury, yet he had seen his son’s time occupied with the testator’s business, and with him at his solicitation; and his opinion of what that interruption of the son in his own business, and the consumption of his time with the defendants’ testator, in and about some kind of business might be worth, was competent evidence for what it was worth. The objection to it was based on the ground that Avitness had not laid sufficient foundation for the expression of an opinion. His ignorance of the nature of the business in which the son was engaged for the defendants’ testator, certainly abridged his ability to estimate accurately the Avorth of the services rendered, so that his opinion Avas not very valuable to the jury; still Ave think it could not be excluded altogether; and therefore Ave find no error in the first and second exceptions.

The third, eighth, ninth, tenth and eleventh exceptions are to the admission of certain declarations of two of the executors at different times and.to different persons, which were offered for the removal of the statutory bar of limitations. They were offered for no other purpose, and Avere certainly not admissible to establish the claim; but for the sole purpose of removing the bar, the evidence was admissible. McCann, et al. vs. Sloan and Caldwell, 25 Md., 575. We did not understand appellants as pressing these exceptions in this Court.

The fourth exception presents a question of more graAÜty, and one upon Avhich the Circuit Court in our opinion erred. The plaintiff was presenting a claim for twenty-five hundred dollars against a man shown' to be a man of means and a money lender, and fully able to pay as the services were rendered. The plaintiff was himself in business with his father, and their business, which was of a mercantile character, was conducted under the name of O. S. Devilbiss and Son. The father, as witness, in support of his son’s claim, had testified to frequent visits of defendants’ testator to the store, during the period for which services are claimed to have been rendered, and his having called the son to the desk and occupied him with his business for fifteen, twenty or thirty minutes at a time; but what they were doing witness did not know; only he knew once of hi's being twelve hours “ writing proxies;” and had heard defendants’ testator say once, “John, I’ll owe you such a bill I don’t know that I will ever be able to pay you for your services.” On 'cross examination the defendants offered to prove by the same witness that in the spring of 1886, the plaintiff applied to the defendants’ testator for a loan of one thousand dollars, and on the first of April of that year did obtain that sum from the testator, for the use of the firm of which he was a member. At that time, if the plaintiff’s claim, as made, is just, the defendants’ testator would have owed him twenty-four hundred dollars. The fact that he applied for a loan of not half so much, and that the note of the firm was executed to the defendants’ testator therefor, drawing interest, was certainly a circumstance throwing such doubt upon the claim of the plaintiff, and creating such a presumption that at that time the defendants’ testator did not owe the plaintiff any such sum as that claimed; or even any sum, that the appellants were entitled to the benefit of it. The claim made is one of a most remarkable and unusual character. It is* made against a deceased person’s estate,' which is large, — indeed so large, that the appellants would have the right to argue that such a claim as this would not he likely to he left outstanding and unpaid; and to us it seems very clear that they were entitled to the facts which they offered to prove, as tending to discredit the plaintiff’s claim. They had a right to evidence of any circumstance tending to show it was unlikely that the plaintiff could have a claim against the deceased, such as that preferred against his estate; and that he should apply for a loan and give a note for it when such a claim did exist, the jury might properly think was, improbable. It had a tendency to show, most certainly, either that the plaintiff knew that the defendant’s testator did not understand the services rendered to be other than gratuitous, or that they had been fully recompensed in some way, and that at that time there was nothing due. When this application was made to borrow, if the lender had supposed himself in debt as charged, instead of lending, and taking a note, he most naturally would have been expected to say: “You have no need to borrow, I owe it to you, take it.’’ It seems clear to us that the learned Judges of the Circuit Court erred in excluding this evidence. Coupled with it the evidence in the sixth exception ought to have been admitted; hut there was no error in excluding that offered in the fifth exception. In the fifth the offer was to show generally to whom the plaintiff and his father as partners were indebted, and was not confined to an offer to show indebtedness of the plaintiff’s firm to the appellants’ testator.

The seventh exception is to the allowance of this question to be put to the witness on re-examination: “On Saturday, Mr. Bond asked you what valuation you put on your son’s services in the various years up to 1887. You have testified in chief that your son’s services were worth $100 per' year; and oh cross examination you said $50 for one year and for the other years you put no valuation on them; now, will you explain what you meant when you said you put no valuation on his services for those years?”

Upon re-examination, Mr. Greenleaf says, in sec. 467 of vol. 1 of his work on Evidence, that it is admissible “to ask all questions which are proper to draw forth an explanation of the sense and meaning of the expressions of the witness used on cross examination, if they, be in themselves doubtful.” The object of this question was clearly to obtain an explanation of what the witness meant by saying he put no value on any services but for one year. The leading way in which it was done, by reciting what he had testified in chief, and contrasting it with what he said on cross examination, by way of showing the witness, who was1 certainly not an unwilling and hostile one, that he had gotten into difficulty and must work his Avay out, was the 'ground of objection. It is certainly questionable whether so suggestive a method of re-examination should have been permitted. We think what he had said in chief should have been omitted, and not suggested to him; but the authorities seem to say the whole matter of leading questions is within the discretion of the Court, and that error can not be assigned because of the allowance of such interrogatory. 1 Greenl. Ev., sec. 435; 2 Taylor’s Evidence, 1217; Ohlsen vs. Terrero, L. R., 10 Ch. App., 127; Lawder vs. Lawder, 5 Ir. L. R., N. S., 27 ; Walker vs. Dunspaugh, 2 N. Y., 170; Wells vs. Jackson Iron Manuf. Company, 48 N. H., 491. There is an exception to the rule when a substantial injury is done by such ruling, in the exclusion of testimony a party might otherwise have enjoyed. Moody vs. Rowell, 17 Pick., 498; Gunter vs. Watson, 4 Jones (N. C.). L., 455. In this case we can see no substantial injury. Tbe witness being on re-examination, according to tbe quotation from Mr. Greenleaf, he was entitled to an explanation of what be bad said on cross examination, and to repe'at that would appear proper.

The twelfth exception complains of tbe exclusion of what was offered by George R. Gehr, a clerk to tbe bank, as to tbe business qualifications of tbe appellants’ testator. There would seem to be no error, as it was in rebuttal of nothing offered by tbe plaintiff. Physical or mental infirmity was not relied on as a reason for bis employment. In fact, plaintiff’s main witness testified that tbe deceased was remarkably vigorous, mentally and physically.

Tbe thirteenth exception embraces tbe prayers granted and rejected. But one prayer on tbe part of tbe plaintiff was offered and granted. To this prayer the' only objection found, as we understood it, was that the evidence did not support it. Tbe exceptions show no such ground of objection below, and that reason is not available now against a granted prayer. Assuming there was evidence to support all its recitals, there would seem to be no error in granting it.

The first and second prayers of the defendants claim in effect that there is no evidence legally sufficient to remove tbe bar of tbe Statute of Limitations. We did not understand them to be pressed in this Court. But if they were not abandoned, and there was no defect in form, what we have said in disposing of the exceptions to tbe evidence on that subject would sustain tbe Court’s action on them.

Tbe pintb prayer was too general, and was properly rejected. It excluded Charles S. Devilbiss’ evidence as to services rendered, and did not raise any question as to the sufficiency of bis testimony on tbe question of value; which we suppose was really designed to be presented. The tenth prayer asked to exclude Dr. Weaver’s testimony in effect. It was too general. He had testified to declarations of the deceased as to services of the plaintiff to the deceaséd, which were properly admitted in evidence. His testimony certainly did not tend to establish the claim as to value,- — but the prayer did not so confine it. The same may be said as to the eleventh and twelth prayers. They were too general also, and for like reasons. We see no error in the modification of the defendants’ fourth, nor in the rejection of the seventh. Further comment on them we deem unnecessary. The judgment must be reversed for the errors we have found in the fourth.and sixth exceptions, and a new trial will be granted.

(Decided 10th January 1889.)

Judgment reversed, and neto trial awarded.