Cumberland Glass Manufacturing Co. v. DeWitt

Burke, J., delivered the opinion of the Court. The amended declaration upon which this case was tried alleged that since the year 1886 the plaintiff had been a dealer in imported and domestic bottles, demijohns, etc.; that the defendant, the Cumberland Glass Manufacturing Company, a foreign corporation, was engaged in the manufacture of glass bottles, window glass, etc., and conducted its factory at Bridgton, in the State of New Jersey; that it complied with the requirements of the laws of this State which permit foreign corporations to transact business here, and that it was in fact doing business here. It further ³⁸⁶ alleged that on February 8th, 1906, the plaintiff entered into a written contract with the’ Mallard Distilling Company of Hew York to supply them with one thousand gross of half-pint lettered gin flasks, eight ounce capacity, at the price of two dollars and forty cents per gross, and that on or about the same date did verbally enter into an additional contract with said company for another one thousand gross of bottles at two dollars and forty cents per gross, which bottles were to be made identical in every respect with those specified in the written contract. It then alleged “that the Cumberland Glass Manufacturing Company did, with .knowledge of the existing contract, on or about the 15th clay of February, 1906, by and through the medium of their agents, visit the said Mallard Distilling Company, and maliciously and without just cause, with the intent to injure the plaintiff and to derive a benefit for itself, cause, induce and procure the said Mallard Distilling Company to rescind, break and violate their contracts” with the plaintiff.

It further alleged that at the time the Mallard Distilling Company broke its contracts the plaintiff charged the defendant with having interfered with and caused the Mallard Company to break the contracts; that the defendant denied that it had in any way interfered with the contracts, or had procured, or caused the same to be broken; that the plaintiff was unable to procure sufficient proof against the defendant of its violation of duty, and that the proof of the facts was not: known or exhibited to him until the latter part of the year 1909, but was fraudulently concealed and withheld by the defendant. The defendant interposed three pleas — first, that it did hot commit the wrong alleged; secondly, limitations; thirdly, res adjudicaba, based upon certain proceedings had in the United States District Court for Maryland, and particularly set out in the pleas. The plaintiff joined issue upon the first plea, and demurred to the second and third. The demurrer was overruled as to the second plea — limi ³⁸⁷ tations — and sustained as to the third plea — res adjudicata.

The plaintiff replied to the plea of limitations, and, upon demurrer, the replication was held bad. He then filed an amended replication in these words: “That the said cause of action did accrue within three years prior to the filing of the said suit, inasmuch as the said Cumberland Glass Manufacturing Company, the defendant in the said cause, did fraudulently keep the plaintiff in ignorance of the said cause of action by fraudulently, deceitfully and dishonestly denying that it had in any way been guilty of any of the acts alleged in the said cause of action as set out in the amended declaration of the plaintiff, although the plaintiff did charge the defendant with the same upon the first Of March, in the year 1906 ;• and the said facts did not come to the knowledge of the said plaintiff until the latter part of the year 1909, although he had used ordinary diligence to discover the same.” The defendant demurred to this replication' and its demurrer being overruled, filed a rejoinder upon which issue was joined. The trial resulted in a verdict and judgment for the plaintiff, and the defendant has appealed. The first question presented for consideration is the legal sufficiency of the declaration.

This question is raised by the plaintiff’s demurrer to the second and third pleas to the amended narr. and by the defendant’s second prayer, which refers to the pleadings, presented at the close of the case. The declaration is said to be bad for three reasons — first, because it contains no allegation that the plaintiff was able and willing to carry out his contracts with the Mallard Distilling Company;' secondly, for duplicity, since it contains two complete, separate and independent causes of action in OUfe count; thirdly,' because one' of the contracts was unen•forceable under the Statute of Frauds, and the declaration does not allege that but for the defendant’s interference ■the Mallard' Company would have carried out this contract, and would not have relied upon the defense of the statute. ³⁸⁸ The first'and second grounds of objection rest upon the doctrine declared in Dimmick v. Hendley, 117 Md. 458 ; Milske v. Steiner Mantel Company, 103 Md. 235 , and other eases. But those cases have no application to cases of this kind. The cause of action set out in the declaration is the wrongful interference by the defendant with the contract relations between the plaintiff and the Mallard Distilling Company.

The cause of action is the tortious act of the defendant in procuring or causing the breach of the plaintiff’s contracts with the Mallard Company. The suit is not upon the contracts, nor does it charge the defendant with several distinct torts. It charges one single tort resulting in damages to the plaintiff. It is well settled that a declaration, whether it is based upon a contract or upon tort, can not combine in one count two distinct causes of action.

But we do not regard the declaration in this case as open to this objection., Mr. Poe, in his first volume on Pleading and Practice, section 734, says: “Much discussion will be found in the books in regard to what will and what will not make a pleading double. The best analysis of the adjudications, and the principles deducible from them, is given by Mr. Stephen. lie shows that a pleading, under the old system, was not made double by immaterial matter, nor by matter pleaded only as necessary inducement to another allegation, nor by matters, however numerous, provided they constituted but one cause of action or one defense.” It was necessary to the plaintiff’s case that he should set out in the declaration his contracts with the Mallard Company, but these contracts were not his cause of action, and their stater ment in the declaration did not make it bad upon the principles stated by Mr. Poe. Nor does the fact that one of these contracts was oral affect the sufficiency of the narr. The contract is not void, although it might not have been enforcible against the Mallard Company.

But this circumstance can not avail the defendant. This was decided in Knickerbocker Ice Company v. Gardiner Co., 107 Md. 556 . We are of opinion that the declaration was sufficient. ³⁸⁹ We also hold that the amended replication to the plea of limitations was good. It is provided hy Article 57, section 14, Code of 1912, that in “all actions where a party has a cause of action of which he has been kept in ignorance by the fraud of the adverse party, the right to bring suit shall, be deemed to have first accrued at the time at which such fraud shall or with usual and ordinary diligence might have been known or discovered.” The language of the replication sets out facts which avoid the plea.

If the defendant did in 1906 wrongfully cause the Mallard Company to break its contracts, and the plaintiff was kept in ignorance of his rights by the false statements of the defendant, as the replication alleges, there would seem to be no doubt that he is entitled to rely upon the statute to defeat the plea of limitations. This brings us to a consideration of the exceptions. The first exception presents no question for decision. Rule 25 of the Superior Court of Baltimore City, in which this case was tried, provides that: “Exceptions to the execution and return of a commission shall be made before the jury is sworn in the case, otherwise it shall be considered as waived.” The record shows that the counsel for the defendant stated to the Court before the jury was sworn that he wanted to give notice to the plaintiff that the defendant would “at the proper time object to the depositions of a certain witness, Erist, which had been taken in the case;” but he filed no exceptions until after the jury was sworn and after the plaintiff had been examined, and, therefore, under the rule quoted exceptions as to the execution and return of the commission were waived.

In the second exception it appears that the plaintiff’s counsel offered to show the counsel for the defendant a letter written by the plaintiff to the Mallard Distilling Company. The defendant’s counsel objected, but the letter was not offered in.evidence. It is difficult to see how the defendant could have been injured by this ruling. The third and fourth exceptions may be considered together.

On the 8th of February, 1906, the ³⁹⁰ plaintiff sent to the Mallard Distilling Company the following letter: “February 8th, 1906 Mallard Distilling Co., Few York. Gentlemen: We have entered your order for (1000) one thousand gross half-pint lettered gin flasks, eight ounce weight and eight ounce capacity, same as before. We are to make these flasks at once, and you are to take two (2) cars not later than July 31st, 1906, and you are to take two remaining cars not later than July 31st, 1907. Price to be $2.40 per gross f. o. b.

Yew York, packed in crates of one gross each. Terms 30 days or 2% for cash in ten days. Guaranteed first-class flint ware. Breakage not to exceed 2%.

Yours truly, Chas. DeWitt & Go. Accepted: Mallard Distilling Co. (rubber-stamped) Ohas. M. Kohn, (written in ink) Sec’y. & Treas.

(rubber stamped)” It is shown that Charles M. Kohn was the secretary, treasurer and manager of the Mallard Distilling Company. The third exception was taken to the introduction in evidence of an admission of Mr. Kohn that he had signed the acceptance endorsed on the above letter, and the fourth- exception was to the admission of the contract in evidence. This contract was alleged in the narr., and is one of the contracts which it is alleged was caused to be broken by the Mallard Company by reason of the unlawful interference of the defendant, and the plaintiff had a right to prove the existence of this, contract. There was no error in these rulings.

What we have just said also applies to the fifth exception. There is nothing to show what testimony was objected to, or