Carey v. Merryman

Geasost, J., delivered the opinion of the Court. The first exception was taken to the refusal of the Court below, to incorporate in a bill of exceptions tendered by the appellants, certain evidence which they allege was not admissible, and to the admission of which they assert they had objected. ⁹⁹ The refusal of the Court to sign and seal a hill of exceptions, or to incorporate therein certain evidence, cannot be reversed by this Court upon a bill of exceptions taken to such refusal, unless the refusal of the Court below is based upon its opinion that such evidence is irrelevant. A party feeling himself aggrieved by such refusal, must resort to a different proceeding to have the error, if it be one, corrected. Marsh, et al. vs. Hand, 35 Md., 124 .

But if the first bill of exceptions were properly before us, we should have no hesitation in affirming the rulings of the Judge of the Baltimore City Court, for the reasons assigned by him for not signing the bill of exceptions tendered by the appellants’ counsel, or inserting therein the evidence which their counsel requested to be incorporated in it. The second exception was taken to the granting of the appellees’ five prayers and the refusal of the Court to grant the first, second, second B, and fourth prayers of the appellants, their third having been granted and their fifth and sixth conceded. In the argument in this Court the counsel of the appellants admitted the correctness of the rulings of the Baltimore City Court, upon their first and fourth prayers, as also upon all the prayers of the appellees except the first and second, and abandoned their exception so far as they were concerned. But it was insisted that the Court erred in rejecting their second and second B prayers, and in granting the first and second of the appellees.

The second prayer B, it was admitted, was offered as an amendment of their second prayer. These prayers asked an instruction that, if the jury should find the facts therein stated, then the defendants were bound to pay for the bricks only such sum as the jury should find them to be worth to the defendants, unless the jury should further find that they agreed to take bricks of the color and quality actually sent by the plaintiffs, in place of those originally agreed upon, and unless the jury should further find that ¹⁰⁰ the defendants accepted said goods from the plaintiffs under the further instructions of the Court. To what instructions the jury were thus referred, whether to those granted at the instance of the appellees or to those of the appellants, which were granted and conceded, it was impossible for them to know. These prayers were calculated by this uncertainty to confuse and mislead the jury, and were for this reason properly rejected.

It is contended that the appellees’ first and second prayers are in direct conflict with the appellants’ fifth prayer, which being conceded, was the law governing the case. Haney vs. Marshall, 9 Md., 215 ; Balto. & Ohio R. R. Co. vs. Blocher, 27 Md., 286 ; Cooper vs. Utterback, 37 Md., 314 . If there be such conflict, therefore, the judgment appealed from cannot stand. The record shows that the plaintiffs offered proof at the trial that they had sold and delivered to the defendants all the bricks charged for in their bill of particulars, at the prices therein charged, and then the defendants offered evidence tending to prove that certain of the long arch brick charged for in said bill were of bad quality, so that they could not be cut, and were in great part spoilt in the fitting, and that Crangle, the plaintiffs’ foreman, agreed on behalf of the plaintiffs, that only such of the same as were used should be paid for, and that a much larger number were charged for than were used.

The plaintiffs then offered rebutting evidence to prove that the defendants had contracted to select the bricks themselves, and did select them, and that the bricks so selected by them were delivered by the