Cover v. Smith

Boyd, J., delivered the opinion of the Court. This action was brought by the firm of Smith & Pride, and, Mr. Pride having died while it was pending, the appellee, as the surviving partner of the firm, prosecuted the case and recovered judgment against the appellant for a balance alleged to be due on transactions between them, arising out of the purchase of certain stocks in the months of September, October and November, 1890. In'the course of the trial forty-six exceptions were taken to the rulings of the Court in admitting or rejecting evidence offered. After the testimony was concluded the plaintiff offered two prayers and the defendant twenty-five; one of the former was granted and fifteen of the latter were rejected, and the action of the Court as to them is brought before us' for review by another bill of exceptions.

Although the exceptions are thus numerous, the questions presented can be classified so as to materially reduce the number to be passed upon and the main principles involved have been so thoroughly settled by the decisions of this Court as to relieve the case of any great difficulty beyond the labor required in ascertaining from a confusingly voluminous record the material points passed on by the Court below. In order that we may see what the real controversy between them is, it will be well to refer in the beginning to portions of the testimony of the parties to the suit. The appellee testified that he and his partner were stock and grain brokers in Baltimore, and that between the 18th of September and the 6th of November, 1890, they bought for the defendant, through the New York Stock and Produce Clearing House Company, Limited, the stocks mentioned in the account filed with the narr.; that his firm had a contract for the purchase of stocks with that company ⁶⁰⁹ which they showed defendant, who told them to" buy the stocks for him from that company, and that they were purchased under the terms of that contract. He also said that the defendant paid at the times of the purchases what are called “ margins,” and agreed to pay such additional margins as were necessary to keep the stocks to the contract price until the purchase money was paid, when they were to be delivered; that the defendant requested them from time to time to pay to the New York Company the necessary margins, which they did until November 12th, 1890, when they were sold by the New York Company by reason of the failure of the defendant to pay as agreed.

The plaintiff claimed, and the evidence offered by him tended to prove that there was an actual sale of the stocks with the understanding that they were to be delivered on payment of the contract price, together with such other sums as might be due for advances made, etc. It was not claimed by him that his firm had the stocks in their own possession, but that they ordered them from the New York Company, at the request of the defendant, and that company purchased and held them ready to be delivered upon payment of the balance of the purchase money. The defendant flatly denied that there was any such agreement, but alleged that “ We were to deal on margins altogether. The plaintiffs were to buy no stocks for him and he was to pay for none * * * That it was understood that there should be no delivery of stocks and no stock bought for delivery; that it was purely a marginal business between them.” • It will thus be seen what the main controversy was and that the difference between the parties as to the character of the transaction was sharply defined, but as we will hereafter have occasion to refer more particularly to some of the other evidence offered, we will not now do so, but will proceed at once to the consideration of the exceptions. As it will be necessary in passing on some of the questions raised to examine all the evidence properly in the record, we will consider at once the objections urged against ⁶¹⁰ the admissibility of the testimony of Charles H. Platt, which are presented by the 17th to the 28th, inclusive, of the bills of exception.

On August 10th, 1891, leave was granted to the plaintiff by the Circuit Court for Carroll County, where this suit was originally' instituted, to issue a commission to take testimony. Interrogatories to be propounded to P. H. Platt, of the city of New York, were filed by the plaintiffs and served August 17th, 1891, on the attorneys for the defendant, together with the name of Gilbert Elliott, as the commissioner suggested by the plaintiff On August 25th exceptions were filed to some of the interrogatories on the ground that they were immaterial, irrelevant, etc., but no commissioner was named by the defendant On October 19th, 1891, a commission was issued to Elliott authorizing him to examine P. H. Platt. On the 30th of November, 1891, the commission and the return of evidence taken by Elliott were filed, by which it appears he had taken the deposition of C. H. Platt, and it was signed Charles H. Platt. On February 1st the plaintiff’s attorneys served on the defendant a notice that the commission had been returned and opened.

The defendant then filed exceptions to the issuing of the commission on the ground that it had been issued to one commissioner, and for other reasons particularly set forth and to the execution and return of the commissions upon various grounds which we will not recite, as they have not been urged in this Court. As the defendant received notice of the commissioner proposed by the plaintiff, his failure to name another must be considered a waiver of his right to have two commissioners and a consent to the execution of the commission by the one named. Billingslea v. Smith & Pride, 77 Md. 516 . But it is contended that the evidence of Charles H. Platt was inadmissible because the commissioner was authorized to take the testimony of P. H. Platt and not Charles H. Platt, and this objection to his evidence was the one mainly relied on in the argument.

The interrogatories filed by the plaintiff show upon their face that they were intended ⁶¹¹ to be propounded to a man named Platt who was connected with the New York Stock and Produce Clearing House Company, Limited. There is not the slightest intimation that the defendant was in any way misled by calling the witness, P. H. Platt, instead of C. H. Platt. On the contrary, the record shows that althongh numerous exceptions were filed to the issuance, execution and return of the commission, no objection was made, for the reason we are now considering, until at the trial of the case, which took place in April, 1894. The rule of the Circuit Court for Carroll County, from which the commission issued and to which it was returned, provided that “ If a commission shall have been returned and opened and notice thereof given to the opposite party ten days before the commencement of the term, exceptions to the execution and return thereof shall be filed the 3rd day of the term or they shall be considered as waived.” This notice was served, as above stated, on the 1st of February, 1892.

It is manifest that the object of the rule is to prevent injustice being done by having objections raised to the execution and return of the commission when it is too late to correct it ydthout at least continuing the case. If the Court could see that a party to a suit had been misled, intentionally or otherwise, by such a mistake as this, in the name of the witness to be examined, it should undoubtedly remand the commission if a reasonable application be made, but without deeming it necessary to determine whether the evidence taken under such circumstances should be excluded, even on a timely application, unless the opposing party had been, or might have been injured, we think the Court was clearly right in not rejecting this evidence by reason of a misnomer of the witness Platt, as it was too late to raise the objection. We cannot agree with the learned attorneys for the appellant that the objection does not go to the execution and return of the commission, but to the admissibility of the evidence itself. If it be inadmissible because the commissioner took the deposition of C. H. Platt instead of P. H. Platt, that must necessarily affect the ⁶¹² execution of the commission, for if appellant’s contention be right, the commissioner was not authorized to take or return the evidence of C. H. Platt under that commission.

If the testimony of C. H. Platt be competent, material and relevant to the issues, it could only be rejected because it had not been taken in some authorized way. The objection to the commission goes far beyond such questions as the relevancy or materiality of the testimony. It was to the effect that it was not evidence at all, because Elliott had no power to take it, and he had not executed the commission in the manner authorized by the Court. It was therefore necessarily a question affecting the execution and return of the commission, and such objection should have been made as required by the rule of the Court, and not, over two years after it was returned, at the trial of the case.

We think, therefore, that the evidence taken under that commission, so far as offered, was admissible, it being relevant and material, and the objections stated in these bills of exception were properly overruled. . Having determined that the evidence of Platt was admissible, it will perhaps be better to consider the rulings of the Court on the prayers before passing on the other exceptions. In this age of speculation and tendency to deal in large transactions with but little capital invested by means of what are called “ margins,” it behooves the Court to apply vigorously the well established principles of law that forbid gambling in all forms and to refuse relief to those coming before them seeking to recover gains tainted with that crime. In many cases the rise and fall of prices' of stocks are not controlled by their intrinsic value, but rather by the greed of those who are willing to ruin their fellows to enrich themselves.

Courts cannot be unmindful of the fact that many