Deland Mining & Milling Co. v. Hanna

⁵³⁰ Pattison, J., delivered the opinion of the Court. This ease originated in a non-resident attachment proceeding, instituted by the appellees, Robert N. Hanna and Charles A. Williams, trading as the Eastern Mineral Company, against the appellant, The Deland Mining and Milling Company, to recover an amount alleged to be owing by the appellant to the appellees, for three car loads, sixty tons, of soapstone sold unto .the appellant company, and upon its order shipped to the Ford Manufacturing Company of Vandalia, Illinois, with a charge therein for'six hundred hags, in which the soapstone was shipped, at ten cents per bag. ' The writ of attachment was sued out of the Circuit Court for Cecil County and placed in the hands of the sheriff of that county, who attached certain property of the appellant, and made his return thereto accordingly. The appellant thereafter filed its bond, as provided by statute, and through its attorney, entered its appearance to the suit, whereupon the attachment was dissolved. Upon suggestion of the appellant, the case was removed to the Circuit Court for Baltimore County for trial.

The appellant pleaded to the short note or declaration, consisting only of the common counts, hy filing the pleas of (1) never promised as alleged, (2) never indebted as alleged and (3) set-off, and with these pleas filed the following bill or account against the appellees: Statement. Baltimore, April 21st, 1909. Eastern Mineral Company, To Deland Mining and Milling Company. Dr. To this amount of cash paid yoü in June, 1906, to he credited on general account and not so credited.....’. $ 50.00 1907— June.

To this amount of allowance made to Ford Mfg. Co., Vandalia, 111., to induce them to accept inferior goods shipped in violation of your agreement....... 124.00 ⁵³¹ To this amount, being the difference between market valne of 1 carload of superior soapstone and price at which we were compelled to sell said carload to Ford Mfg. Co. as a further inducement to them to accept inferior goods shipped by you to them in May and June, 1907....,............................ 80.00 To value of 800 bags returned to you by Ford Mfg Co. and not credited............................ 80.00 $334.00 The case w§is tried before a jury, and' resulted in a verdict for the plaintiff for the sum of two hundred and eighty-nine dollars and fifty-one cents ($289.51) upon which verdict a judgment was entered for that sum. At the trial of the case there were eight hills of exception reserved by the appellant; seven relate to the rulings upon the admissibility of evidence and one to the ruling upon the prayers.

The plaintiffs (appellees) offered the testimony of Robert FT. Hanna, who testified that he was a member of the plaintiff firm, that his -partner was Charles A. Williams; that he did not know where Williams was, had been absent from the city since December 1st, 1907, '(about eighteen months); that the firm ceased to do business in June of that year; that the plaintiffs had business dealings with the defendant beginning in October or November, 1906, when they commenced selling Hilton J. Doggett at that time; that after that Doggett oi’ganized the defendant company; that on the 25th day of May, 1907, the plaintiff received an order from the deféndant for three carloads of goods to be shipped to the Ford Manufacturing Company, of Vandalia, Illinois. The order was in these words: ⁵³² Order. May 25th, 1907.

Eastern Mineral Company, Baltimore, Md. Gentlemen:— Please ship in our name consigned to the Eord Manufacturing Company, Yandalia, 111., as soon as possible three (3) carloads of your No. 100 fine Powdered Soapstone, and let us have the invoices and Bills of Lading for same at the earliest possible moment so we can put a tracer on these cars and hurry them forward to this Company. They are in urgent need of these cars, and will want two or three cars a month in addition to these three cars, provided we can serve them satisfactorily. The price, terms and conditions of this order are the same as heretofore. Please advise when you will be able to get these cars off so we can advise the Eord Mfg.

Co., and oblige. He further testified that the goods were shipped pursuant to order; that he was familiar with the books of the plaintiff which were identified by him, and that the entries in them were made by Williams, his co-partner. The plaintiff then offered to prove by the witness the entries in the order book, so kept by his co-partner Williams, to which the appellant objected. Whereupon the witness was asked: Q. Were they made by you?

A. No, sir. Q. At your direction? A. I saw them made, the date they were made. Q. Who made them?

A. Mr. Williams. Q. Do you know whether or not they are correct, A. Yes, sir; they are correct and correspond with the order. Q. Your partner is out of the State and you do not know where he is? A. No, sir.

The Court thereupon overruled the exception and the entries in the book were admitted in evidence. To this ruling of the Court the appellant excepted, and this constitutes the first bill of exception. This was an offer to prove by the witness, the entries in the book of the plaintiffs, made by Williams, one of the plaintiffs, who was said to be at the time out of the State, and was evidently made for the purpose of proving the sale of the ⁵³³ goods to the appellant, and their delivery to it, by the shipment of same to the Eord Manufacturing Company, as directed by the appellant. In the case of Romar v. Jaecksch, 39 Md. 587 , the plaintiff, to prove the sale and delivery of the goods charged, was called as a witness and produced a book, called the “order book” of the firm, which contained entries made by Campen, his deceased partner, charging the defendant with merchandise sued for in that case..

The witness testified that “whenever Campen sold flour for the firm, he, Campen, was in the habit of entering the same upon an order book kept by the firm, and that the firm always engaged to deliver the flour that, it sold, and also that he knew it to be the custom of Campen to make such entries in the course of business, at the time the flour left the store of the firm, in its wagons, on the way to the place of delivery. The order book contained entries of sales corresponding with those set forth in the acu count filed with the declaration, and also entries of payment for sales which the witness testified were in the hand writing of Campen.” The defendant objected to the admission of these entries as evidence, but the lower Court overruled the exception and allowed the same to be read to the jury for the purpose of establishing the sale and delivery of the goods charged in the account. This Court, upon appeal, held that the entries were not admissible in evidence and in delivering the opinion of the Court, Chief Justice Babtol said that: “In this State the rule of the common law has not been depaified from, and it has been held to apply only to entries made by a clerk, or other disinterested party; here the entries in question are those made by the deceased partner, a party to the transaction, .having a direct interest in the subject-matter, and, therefore, not within the rule.” This Court in the case of Gill v. Staylor, 93 Md. 467 , speaking through Judge Peabce, said: “It is of course clear, both upon principle and authority that entries made by a party himself charging another, ai’e not admissible as evidence per se. Such entries stand upon a different footing from those made by a ⁵³⁴ clerk or other person in the ordinary course of business and contemporaneously with the transaction.” The case of Romer v. Jaecksch, supra, was approved by this Court in Stallings v. Gottschalk, 77 Md. 429 .

And the cases cited by the appellees in their brief are not at all in conflict with these cases. Upon the authorities above cited, it seems clear to us that the entries in the book of the plaintiffs were inadmissible, and that the Court below erred in admitting this testimony. 2nd. In the course of the trial Hilton J. Doggett, president of the Deland Mining and Milling Company, was called as a witness by the defendant company and testified that the plaintiffs manufactured several grades of soapstone, one called No. 80 and another No. 100 and a third called E. E. E., .that samples of these different grades were furnished him, from time to time as needed, by the plaintiffs, but only No. 80 and No. 100 grades interested him. That samples of these, as well as samples of a higher grade of soapstone manufactured by the defendant company, and called Talc, to distinguish it from the common soapstone, were sent to the Eord Manufacturing Company of Vandalia, 111.

That after correspondence with the- Ford Company the defendant company received orders, both for talc and soapstone of the No. 100 grade. The orders for soapstone, three in number, were each for one carload, containing twenty tons, and were dated respectively, April 24th, May 11th and May 20th, 1907. That upon the receipt of these orders he wrote the letter heretofore given, dated May 25th, 1907, to the Eastern Mineral Company, the plaintiffs, directing that company to ship these goods, No. 100 grade, to the Eord Manufacturing Company, Vandalia, 111. That the soapstone was sold by sample furnished by the plaintiffs to the defendant company and which it in turn forwarded to the.

Eord Company. The witness further testified that after receiving complaint from the Eord Company that the soapstone shipped by the plaintiffs was not up to samples, he took up this contention with Williams, one of the plaintiffs, who said he regretted it, but stated “that he realized the situation, and that it would ⁵³⁵ not pay to bring the goods back from Vandalia to the mills at an expense of over $4.00 per ton when the original value was only $3.25, and told the witness to go ahead with the Ford Manufacturing Company and see if he could not arrange some way to keep the. goods; that if witness was compelled to make any deduction or allowance to the Ford Manufacturing Company, Williams would credit him with these deductions or allowances. That he took the matter up with the Ford Manufacturing Company.” The witness was then asked: “Mr. Doggett I want to explain to the Court and jury if there is any difference between talc dust and soapstone, the No. 100 grade such as you bought from the plaintiffs in this case?” The plaintiffs objected to this question. The Court sustained the objection and the witness was not permitted to answer the question, whereupon the defendant excepted, and this constitutes the second bill of exceptions. 3rd.

The witness was thereafter asked: “Now, Mr. Doggett, come back to your story as we were progressing when the Court adjourned on Thursday, I understood you to say, you had taken up with Mr. Williams, the matter of objections made by the Ford Manufacturing Company to these three carloads of soapstone. Now I want you to tell his Honor and the gentlemen of the jury what-conversation or understanding you had with Mr.