Bauernschmidt v. Maryland Trust Co.

Fowler, J., delivered the opinion of the Court. This is an action on the case for deceit, brought by the plaintiff, John Bauernschmidt, against the defendants, The Maryland Trust Company and others, to recover damages for loss alleged to have been sustained by said plaintiff, by reason of a certain alleged false representation made by them. The suit was brought in the Superior Court of Baltimor City. In the first count of the declaration the allegation is, that the defendants, intending to deceive the plaintiff, issued and offered for sale certain coupon bonds of the Alta Telephone Company, which was incorporated under the laws of West Virginia, and represented to the plaintiff, and caused to be printed on each of said bonds the following words: “ It is hereby certified that this bond is one of a series of six hundred bonds for five hundred dollars each ⁵⁰⁹ for the security of which the within mortgage was executed.” And the plaintiff, as he alleges, relying on and believing the said representation of the defendants, was induced to invest the sum of thirteen thousand dollars in said bonds.

The sum so invested, he alleges, he lost, because the bonds were worthless. The second count is based upon an alleged conspiracy entered into by the defendants to defraud the plaintiff by making a false representation, to-wit: “That said bonds were secured by mortgage,” in order to induce him to purchase the bonds mentioned in the first count. To both counts of this declaration the defendants, or so many of them as appeared, pleaded the general issue. The issues raised, therefore, by the pleading, are: First, were the bonds described in the declaration as purchased by the plaintiff, bonds belonging to the series mentioned in the certificate relied upon, and, second, were said bonds secured by mortgage ?

During the course of the trial there were twelve exceptions taken by the plaintiff to the exclusion of evidence, and one to the instruction of the learned Judge below, that upon the pleadings and evidence the plaintiff was not entitled to recover. Under these circumstances it will be necessary to ascertain by an examination of the record what testimony was admitted and what was excluded. The plaintiff offered in evidence the mortgage from the Alta Telephone Company to the defendant Trust Company, by which mortgage the bonds in question were secured. There was no objection to its regularity in any respect.

The forty bonds were next offered, each bearing upon its back the certificate signed by the defendant Trust Company, as set forth in the first count of the narr. In order to show the insolvency of the Alta Telephone Company the plaintiff offered the original papers from the 'Circuit Court No. 2 of Baltimore City, together with a duly certified copy of the docket entries in the case of “Andrew G. Steelman, ⁵¹⁰ plaintiff, against the Alta Telephone Company, defendant,” by which it appeared, among other things, that this company was largely indebted and had very small assets, that the holders of its bonds (not including the plaintiff) participated in the distribution of its assets — the main portion of which consisted of two pieces of leasehold property, located in Baltimore City, and included in said mortgage. None of the foregoing testimony, nor the formal proof of certain matters, such as the incorporation of the Alta Telephone Company, was objected to, and it was all admitted, including the proof of the law of West Virginia in regard to the organization of corporations, and the holding of meetings of stockholders for the election of directors. At this stage of the case, however, the plaintiff called the witness Scott, secretary of the defendant Trust Company, and proposed to ask him whether he “ had any knowledge of what property the Alta Telephone Company had in 1896, after its formation?” But the Court refused to permit the question to be put to the witness.

It is true, as suggested by the defendant’s counsel, that it does not appear by the record what the answer of the witness would have been, nor what the plaintiff expected to prove by the witness, yet, “ if the question was in itself proper and pertinent, it was quite unnecessary * * to state the purpose for which it was offered.” County Commissioners v. Gantt, 78 Md. 290 . Was the question here objected to proper and pertinent ? We think clearly it was not. There is no averment in the narr. that the plaintiff was injured by any false representation in regard to the property owned by the Alta Telephone Company in 1896, or at any other time.

For, as we have already pointed out, the representations relied on are the statements contained in the certificate signed by the Maryland Trust Company, as trustee, which we have transcribed in the former part of this opinion, that the bonds were secured by mortgage — and that each of them was one of the series of bonds thereby secured. It was not contended in this case, nor do we suppose it could be ⁵¹¹ successfully contended, that the certificate here relied on can be construed as constituting a warranty of the sufficiency of the mortgaged premises as security for the bonds mentioned in the mortgage. But unless the contention go to this extent, we do not see in what respect