Bracey v. McGary

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment obtained by the appellee against the appellants for $3,430.00. In addition to the common counts there are five special counts, but all of them are on an alleged contract by the appellants to purchase from the appellee 3,000 shares of the preferred stock and 6,000 shares of the common stock of the Howie Mining Company, -and to pay therefor the par value of the preferred stock, to wit, $3,000.00. The agreement, after reciting that McGary (the appellee) who is the party of the second part, had purchased from S; H. Bracey Company, the party of the first part, the shares of stock above mentioned, provided that in consideration of said purchase and of the sum of one dollar ²⁶⁹ in hand paid, the party of the first part “agrees to and does hereby guarantee to repurchase, at the election of the second party, on thirty days written demand and notice at any time after one year, and within two years from the date of this instrument, the amount of preferred and common stock so sqM to the party of the second part, and pay therefor the amount of the par value of the said preferred stock with interest thereon at seven per cent, to the date of such repurchase,” etc. The date of the agreement alleged in the amended declaration was the 28th day of September, 1914:.

The agreement has in ink the 16th day of September, and written in lead pencil over the 16th is 23. The introduction of the agreement in writing was objected h> on the ground that it is apparent upon the face of the paper that it, had been materially altered by changing the date. The objection was overruled and the contract was admitted in evidence. To that action of the Court- the defendant excepted, and that is presented by the first bill of exceptions- As tbe effect of the alleged alteration is one of the principal questions in the case, we will first consider that.

Inasmuch as the “16th” was not stricken out, but “28” was simply written in lead pencil over it, it might well be questioned whether there was properly speaking an alteration, if that wias all which occurred. It was therefore not so clearly shown upon its face that" it had been altered as to authorize the Court to refuse to admit it in evidence, and there was at least sufficient doubt about it to submit the question to the jury. 1 R. C. L. 969, sec. 5; 2 C. J. 1292, sec. 218. But in addition to that the appellee contends that what was done was with the full consent of Wyatt, the general manager for the appellants. The rule that before the act of an alleged agent can be offered in evidence the agency must first be proven is, relied on by the appellants, but even if it be conceded that there was error in admitting the evidence, until the agency was proven, it can not, in this case be beld to be a reversible error.

After the contract was admitted, the appellee testified that he came ²⁷⁰ into possession of it on the 28th of September, 1914, that there were in the office Bracey, his wife, Hellie A. Bracey, a man named Dorsey, one named LaDue and C. E. Wyatt, who was appellants’ general'manager; that Bracey and his wife put the contract and the two certificates of stock which he had purchased in an envelope and he took them to his room where he discovered that there was a mistake of the date; that he went back to Bracey’s office and he was not there, but Wyatt was, and he pointed out the mistake to Wyatt and made the lead pencil mark of the 28th in the presence of Wyatt, that he “wanted it to compare with the correct date”; that Wyatt said: “When Bracey comes bade we will have this corrected, but it is immaterial, it does not amount to nothing anyhow * * *. You are right, this is the 28th;” that “there was nothing more said about it. So Bracey did not come back for quite a while. I writ the ‘28th’ myself with lead pencil in the presence of Wyatt.” In answer to the question, “Who told you to do that, did Wyatt say anything,” he replied: “Wyatt agreed to it.

I done it myself. Wyatt agreed to it; saw me make this pencil mark.” McGary also said that that was the fifth purchase of similar stock he had made from Bracey, that he had made one on September 16, 1914, and on the 28th he gave Bracey for the 3,000 shares of preferred and 6,000 shares of common stock a contract of a sale of some property he had sold to one Lashom for $3,000 and also a note of Lashom for $100. Bracey testified that he and his wife were partners trading as 8'. H. Bracey Company, and that Wyatt was their General Manager; that in his absence she signed some blank contracts for Wyatt, that Wyatt “had authority and if you can show anything in his writing and signed by my wife I will acknowledge it.

He was authorized to deliver contracts to purchasers of stock. He had full and complete authority to- do' anything and everything in my absence, and those blanks were entrusted to him.” Bracey testified that he was not in Wheeling, where this transaction took place, on September 28, but was in New York. Wyatt also denied the transaction ²⁷¹ was on the 28th, and said it was on the 16th of September. Mrs. Braeey testified that she was a partner, that Wyatt was the manager for Mr. Braeey and herself, and she also said that he was not in Wheeling on the 28th of September.

It was therefore shown that Wyatt had full and complete authority to do anything and everything in Bracey’s absence, and it would be a gross injustice to defeat the appellee’s recovery on the ground that he had altered the contract, if what he testified to was true. If in point of fact there was a mistake in the date, and he noted it on the contract, with Wyatt’s consent—the latter representing S. H. Braeey Company—there can be no doubt about the right of MeGary to make the alteration, if it be such. 1 R. C. L. 987, see. 25; 2 C. J. 1238, sec. 113. The question of consent is for the jury. 1 R. C. L. 971, sec. 5; 2 C. J. 1292, 1294, secs. 218 and 221. That being so we have indicated above that even if there was error in admitting the contract or the evidence of the appellee in reference to the date before it Was shown that Wyatt was duly authorized, as that subsequently appears in the testimony, we would not reverse the judgment for that reason.

It became a question of fact for the jury, and it was submitted by the Court’s instruction, and the defendants’ third prayer, which was granted, instructed the jury that if they found that the contract sued on was in fact made on the 16th of September, 1914, then under the pleadings the verdict must he for the defendants. The appellants have therefore no reason to complain of that action of the Court. The question we quoted above, as to. who told the appellee to write the 28th on the contract, was objected to, and the answer is given. The action of the Court on that objection constitutes the second exception, and there can be no doubt about the Court being correct in that ruling.

The third, fourth and fifth exceptions can be considered together. The appellee testified that he went to- see Mr. and Mrs. Braeey in the latter part of 1915 to get his money which he claimed to be due on this contract. That was. in the third exception, and in the fourth he testified that Braeey ²⁷² told him to bring him his papers and he would pay him. He said he told him to bring in the stock certificates on Monday and that on the following Saturday he would pay him $23,000 at seven per cent.; that that took in all the contracts at that time, including the one in this suit.

There was a motion to ■strike out that evidence, which was overruled, and an exception was taken. Undoubtedly the appellants could.waive the notice in writing provided for in the contract, and the testimony in the third and fourth exceptions tended to show such waiver. MeGary said he went on Saturday and Bracey put him off until Tuesday; that he went back Tuesday, but he did not pay him, and he demanded the money. H‘e told Bracey that he would sue him and he went out to get a lawyer.

He first employed Mr. Jones', who did not get the money, and then he got another lawyer. He said that the written notice of December 14, 1915, was signed by him, but that the body of it was written by Wyatt at his request. The appellants admitted service of the notices; one of which was to S. H. Bracey, and a similar one to Mrs. Bracey. It was as follows: “bTotice is hereby given you that in pursuance of a certain.contract or guarantee agreement underwriting my several blocks of stocks of the Howie Mining Company, aggregating Twenty-three thousand two hundred dollars ($23,200.00) and interest thereon, I am giving you the required thirty days’ notice to retire the same under the conditions and agreements of said contract.” Counsel for the appellants noted an exception and asked the Court to strike out the evidence relating to the waiver of notice—that the other side could not take both positions in reference to notice.

The Court overruled the motion, refused to strike out the testimony and admitted the notices in writing, to which action the appellants excepted, and that constitutes the fifth exception. We find no error in that action of the Court. The appellee was not required to' rely on the waiver, and after finding that the appellants did not pay the ²⁷³ money, lie bad the right to give notice in writing—it being within the time named in the contract. The case of Produce Exchange v. N. Y., P. & N. R. R. Co., 130 Md. 106 , cited by appellants, does not in any way conflict with that conclusion.

On the contrary it only shows that when a stipulation is waived, it is not necessary to show that it was duly observed, that.“The proof of waiver obviates the necessity of proving compliance.” In the former trial of that case ( 122 Md. 231 ) there was a question as to whether a claim for a loss was made within the time named in the bill of lading, and the Court said it might be inferred from the circumstances mentioned that it Was, but added that if it be assumed that it was not, “it is clear that this limitation could be waived.” That ease therefore shows that both positions—waiver and compliance—could be and were taken. On cross-examination of McGary the attorney for appellants called his attention to the fact that he had in his declaration alleged that on the 16th of September, 1914, the defendants agreed to purchase from the plaintiff this stock, etc., and asked him if he referred to the contract of the 16th which he had, or to the one dated the 16th, which he said should he dated the 28th. He replied that he was referring to the one of the 28th, and thereupon, on motion of the plaintiff, the Court permitted him to amend his declaration and his bill of particulars filed to the common counts, so. as to aver the cause of action to be as of September 28th, instead of September 16th, and required the parties to proceed with the trial. That action was embraced in the sixth exception.

It cannot be doubted that the allowance of the amendment was in the discretion