Corbin v. Staton

Stockbridge, J., delivered the opinion of the Court. Certain rulings of the trial court were the occasion for the five bills of exception upon which this appeal was taken. The appellant and his brother were farmers in Worcester County, and the raising and marketing of potatoes were one of their principal crops. The appellee is the receiver* for Howerton & Duncan, from whom the appellant and his brother purchased the barrels for* shipping their potatoes.

The Corbins, Spencer and James, are not sued for the barrels furnished as partners, and probably were not such, although in his testimony Spencer Corbin says, in answer to' the question, “You are not in partnership ?” “In one sense of the word, we are.” The course of business appears to have been as follows: The barrels were made at the factory of Howerton & Duncan under the supervision and direction of J. T. Mariner, who, as the barrels were delivered to customers, made an entry of the number on a calendar sheet, and once a week Miss Howerton would get the sheet and copy, in a book of her own, the number and to whom delivered. What thereafter became of these sheets is not entirely clear. Miss Howerton thinksi she ¹⁵³ sent them to Mr. Duncan, hut he does not recall having received them. In this connection Miss Howerton was ashed what entries she found on the sheets made out by Mr. Mariner, and this she could only answer from the copy she had made.

This was the occasion for the first bill of exception, as on objection the court permitted her to answer. The third and fourth bills presented practically tbe same question. As the sheets kept by Mr. Mariner contained only the number of barrels delivered and to whom delivered, all that could be accomplished by the copy made by Miss Howerton, would be to refresh her memory upon these two points. In the dissenting opinion filed by Judge Bryan in Owens v. State, 67 Md. 307 , he draws the obvious distinction