Catanzara Di Giorgio Co. v. F. W. Stock & Sons

Briscoe, J., delivered the opinion of the Court. This is an action on the common'counts in assumpsit originally brought in the Superior Court of Baltimore ' City, ²⁰³ on the 5th day of June, 1901, by the appellee against the appellant, on an open account, to recover for the value of a cargo of fruit, consisting of bananas, oranges, nuts and other tropical fruits, shipped from Jamaica by steamer to Baltimore. The cárgo was consigned by the bill of lading to the appellee, hut on proper endorsement by them was turned over to the appellant, who subsequently sold the fruit. The case has been tried at least five’times in the Baltimore City Courts, resulting in several verdicts for the plaintiff, one in favor of the defendant and several mistrials.

To the declaration filed on the 5th day of June, 1901, the defendant pleaded-the general issue pleas in assumpsit. On June 4, 1903, the plaintiff by leave of Court filed the following amended declaration in trover: “For that the •defendant converted to its own use and wrongfully deprived the plaintiffs of the use and possession of the goods and chattels of the plaintiffs — that is to say, of certain merchandise consisting of bananas and oranges, and valued at seven hundred and twenty-three dollars and twenty-five cents,” and to this declaration, the general issue plea- of non cul in tort .was filed. On October 27, 1903, the case was removed to the Baltimore City Court, and upon trial on the 12th of November, 1903, a verdict was rendered by1 a jury for $776.96 in favor of the plaintiff, but which was subsequently set aside by the Court, and a new trial granted. On March 29, 1905, a trial was begun and a jury was sworn, but upon leave granted to amend the declaration from trover to assumpsit the case was continued.

On April 4th, 1905, the appellees filed a second amended declaration changing the form of action from trover to assumpsit on the common counts, and claimed $1,500 damages, and to this declaration was annexed a statement of account between the Catanzaro Company and F. W. Stock & Sons. To the declaration the appellant, on the 7th of April, 1905, filed the general issue pleas and two special pleas ²⁰⁴ of liniitation, as follows: “For a first plea, that it never was indebted as alleged; and for a second plea says, that it did not promise as alleged; and for a third plea the defendant says that the alleged cause of action did not accrue within three years before this suit; and for the fourth plea the defendant says that the alleged cause of action did not accrue within three years prior to the commencement of this suit, to wit, March 31, 1905.” On the 27th day of April, 1905, the plaintiff joined issue on the first and second pleas and filed a replication to the third and fourth pleas. Subsequently, petitions, motions, counter motions and other proceedings, almost too numerous to mention, were interposed before another trial was had, as will appear from the following docket entries in the case1. “Docket Entries. 24th May, 1905. — Petition of defendant to dismiss the Replications to the 3rd and 4th Pleas; reasons filed. 24th May, 1905. — Order of Court extending time for filing a Rejoinder or Rejoinders for 10 days after the disposition of the petition to strike out the Replications to the 3rd and 4th Pleas filed.- 13th Movember, 1906. — Petition of plaintiffs to strike out their Replications to the defendant’s 4th Plea and Affidavit in support -of said motion filed. 13th November, 1906. — Order of Court granting leave filed. 13th November, 1906. — Plaintiff’s Replication to defendant’s 4th Plea struck out; order of plaintiff’s attorney filed. 13th Movember, 1906. — Motion by plaintiffs to strike out the defendant’s 4th Plea filed. 13thMovember, 1906.- — Affidavit of Joseph M. Ulman in support of plaintiff’s motion to strike out the defendant’s 4th Plea filed; service admitted. 8th’December, 1906. — Motion by the defendant that the Affidavit of Joseph K. Ulman, filed in support of plaintiff’s motion to strike out defendant’s 4th Plea, be stricken out; reasons filed; service admitted. ²⁰⁵ 24th January, 1907. — Defendant’s motion to strike out the plaintiff’s Affidavit filed in support of the plaintiff’s motion to strike out the defendant’s 4th Plea ‘granted.’ 24th January, 1907. — Plaintiff’s motion to strike out the defendant’s 4th Plea ‘granted.’ 24th January, 1907. — Defendant’s motion to strike out the plaintiff’s Replication to the defendant’s 3rd Plea ‘refused’; order of Court filed. 4th December, 1907. — Jury sworn. 5th December, 1907. — Notice from the defendant to the plaintiffs to produce at the trial of above cause the ledger of Messrs. F. W. Stock and Sons, showing the state of accounts between the plaintiffs and the Norfolk and West India Fruit and Steamship Co.; also all books of account of any character belonging to the Norfolk and West India Fruit and Steamship Co., or containing evidence of any of its business, filed; service admitted. | 5th December, 1907. — Verdict in favor of defendant. 5th December, 1907. — Judgment on verdict nisi. 7thDecember, 1907. — Plaintiff’s motion for a new trial; reasons filed. 19th December, 1907. — Plaintiff’s motion for a new trial ‘granted.’ 10th May, 1909. — Notice from the plaintiffs to the defendant under the 27th Rule of Court, filed; service admitted. 1st June, 1909. — Jury sworn. 2nd June, 1909. — The jury, being unable to agree upon a verdict, were discharged by the Court. 14th September, 1909. — Notice from the plaintiffs to the defendant under the 27th Rule of Court, filed; service admitted. 10th February, 1910. — Deposition on behalf of the defendant taken before J. F. Milholland, a Notary Public of Kingston, Jamaica, B. W. I., filed. 6th October, 1910. — Notice from the plaintiffs to the defendant under the 27th Rule of Court, filed; service admitted. 15th November, 1910. — Jury sworn. 16th November, 1910.; — Verdict in favor of the plaintiffs for $1,070.50. 16th November, 1910. — Judgment on verdict nisi. ²⁰⁶ 17thNovember, 1910. — -Defendant’s motion for a new trial; reasons filed; service admitted. 3rd December, 1910. — Petition of the plaintiffs requiring the défendant to elect between the exceptions and its motion for a new trial, filed; service admitted. 17th December, 1910. — Defendant’s • motion for a new trial ‘overruled.’ 17th December,-1910. — Judgment on verdict absolute in favor of the plaintiffs for the sum of $1,070.50, with interest from date and costs.” We have thus transcribed and inserted the docket entries because it appears there are no bills of exceptions presenting the rulings of the Court below, except upon the evidence and prayers, and the rulings of the Court upon the motions are not set out by the record in a way so as to enable us to review them in this Court.

It is clear upon all the authorities that no question shall be considered or passed upon by this Court which does not appear by the record to have been raised or passed upon by the Court below. Long v. Hawken, 114 Md. 240 ; Palmer v. Hughes, 84 Md. 658 ; New & Sons v. Taylor, 82 Md. 41 ; Wilken Mfg. Co. v. Young, 115 Md.; Kendrick v. Warren Bros., 115 Md. In this case the rules of Court are not in the record, and we have nothing except the docket entries, and these do not show why 'the Court permitted the plaintiff to strike out the replication to the fourth plea or why it struck out the fourth plea at all, and the presumption therefore is, the Court ruled and decided correctly. Cushwa v. Cushwa, 9 Gill, 247 ; Newcomer v. Keedy, 9 Gill, 264 ; Thorne v. Fox, 67 Md. 74 ; Stockett v. Sasscer, 8 Md. 375 ; Hutton v. Marx, 69 Md. 255 .

Coming now to the rulings of the Court upon the prayers and the evidence, it appears that at the trial the defendant reserved forty exceptions, thirty-nine to the rulings upon the evidence and the fortieth to the ruling of the Court in grant ²⁰⁷ ing the plaintiff’s first, third, fourth and ninth prayers and in refusing the defendant’s first, fourth, fifth, sixth, seventh, ninth, fourteenth, fifteenth, sixteenth and seventeenth prayers, and in