Himmel v. Merchants Transfer & Storage Co.

Thomas, J., delivered the opinion of the Court. The appellee, the Merchants Transfer and Storage Company, was in 1916 engaged in the business of hauling and delivering freight in Washington, D. C., and had from time to time hauled goods and merchandise for A. Lisner and delivered the same at his place of business at tho comer of Eleventh and Gb streets, H. W. The appellee also rendered similar services to the appellants, who, it is stated in their brief, were conducting in Baltimore City the business of manufacturing and installing store and office furniture and fixtures, and who also did a large business in Washington, L>. C. It is further stated in. the appellants? brief that in September, 1916, A. Lisner was completing a large addition to Ms store on Gb street, and that the appellants, contracted to install the fixtures and furniture therein, and that to that end the appellants purchased from manufacturers in New York a box or case of mirrors and bad it shipped and consigined to A. Lisner. The record shows that on the 16th of September, 1916, the employees of the appellee received the box of mirrors at the freight station of the Pennsylvania Railroad Company in Washington and hauled it to the. store of A. Lisner.

In unloading the box of mirrors, from the truck or wagon of the appellee, or in attempting to move it after it had been placed on the pavement, the box was allowed to fall and the mirrors were broken. In January, 1917, the appellee brought suit against the appellants in the Superior Court of Baltimore City to rer cover on an account for services rendered in hauling; goods., etc., amounting to $360.34. In addition to the general issue pleas, tho appellants filed a plea of set-off in which they claim as a set-off against the claim of the appellee the value of the mirrors., to wit, $250.41, which they alleged were broken through the negligence of the appellee. ⁴⁰ The case was .submitted to the Court without a jury on certain affidavits made by the employees of A. Lisner; the affidavit of the driver of the truck or wagon of the appellee; the affidavit of the general manager of the appellee, and an agreement of counsel to .the effect that if the Court found that the transfer company was liable to the defendants for the damage done to the mirrors, a judgment should be entered in favor of the plaintiff for $109.93, and if the Court found that the plaintiff Was not liable for the destruction of the mirrors a judgment should be entered for the plaintiff for $360.34. The finding and judgment of the Court being in favor of the plaintiff for $360.34 the defendants have appealed.

The only exception in the record is to the rejection by the Court below of the following, prayer of the defendants: “The Court rules as a matter of law that there is no evidence legally sufficient to show that the employees of A. Lisner were