Hoogewerff v. Flack

Jones, J., delivered the opinion of the Court. This case was instituted by the appellee against the appellant in the Superior Court of Baltimore City upon a declaration consisting of the common counts and a special count as follows: “For that the defendant was and is a stock broker, and on or about the — day of August, 1903, agreed with the plaintiff to purchase for and deliver to the plaintiff two hundred shares of the stock of the Amalgamated Copper Company at the price of $53 per share and the plaintiff delivered to the defendant the sum of $5,800 with which to make said purchase as part payment of the purchase price, to wit, $10,600, and the plaintiff stood and has always been ready and willing to turn over and deliver to the plaintiff the balance of the sum necessary to pay in full for said shares of stock, to wit, the sum of $4,800 upon their purchase by the defendant, but the plaintiff says that the defendant has neglected and refused to deliver, to the plaintiff the shares of stock purchased or to be purchased by him and has utterly failed to comply ³⁸⁰ with his obligation under said contract whereby the plaintiff has been much damaged and claims $8,000 damages.” The appellant pleaded non-assumpsit, and not indebted, and three additional pleas to the special count in the plaintiff’s declaration. The first of these traversed the said count. The other two are summarized in the brief of the plaintiff as follows: “(2) that defendant was not a stock broker in the city of Baltimore, nor a member of stock exchange in said city, and was not a member of the stock exchange in the city of New York; that Amalgamated Copper stock was not dealt in at the Baltimore exchange and had to be bought, as plaintiff well knew, through a broker who was a member of a stock exchange in some other city where said stock was dealt in; that accordingly defendant placed plaintiff’s order with E. N. Morrison & Co., members of the New York stock exchange; that from time to time E. N. Morrison & Co. in accordance with the rules of said exchange, called upon defendant for certain sums of money as “margins” on said stock, whereupon defendant called on plaintiff for such sums, and at once on receipt thereof paid the same over to E. N. Morrison & Co. and that defendant never received any sum or sums from plaintiff other than those so as aforesaid paid over to Morrison & Co.; and (3) that the alleged contract was not a genuine purchase and sale, but merely contemplated a settlement of differences, and that all money received by defendant was by him applied to the purpose for which plaintiff had delivered it to him.” In his replications filed thereto the appellee traversed these special pleas and issue was joined thereon.

The trial of the case resulted in a verdict and judgment against the appellant (defendant below) and he has brought this appeal. The questions presented for decision here arise upon two exceptions—one relating to the action of the trial Court in ruling upon the admissibility of evidence—the other to the rulings upon the prayers. There can be but little difficulty in disposing of the question raised by the first exception. It arose upon the offer in evidence by the plaintiff, in the course of the trial, of a ledger kept by the brokerage firm of E. N. ³⁸¹ Morrison & Co. and certain accounts therein pertaining to dealings of the appellant (defendant below) with that firm.

The appellant was being examined as a witness on his own behalf and upon cross-examination frequent references were made by the examining counsel to the book in question. Before the conclusion of the cross-examination the same was suspended, and a clerk in the employ of E. N. Morrison & Co. was called by the appellee as a witness with the view of laying a foundation for the offer in evidence by the appellee of this ledger and the accounts. This witness was asked. “State whether the book marked Ledger No. 5 Morrison & Co. which I hold in my hand was the official ledger of the firm of Morrison & Co.” Answer. “It is one of their books. Q. Is it one of their official ledgers showing transactions in their business?

A. Yes sir; we call all the ledgers official. * * Did you make any of the entries? A. I doubt if you will find my handwriting in that book once. Q. What was your business? A. I was in the front office getting business, and I was in charge of the margins.

Q. Do you understand the business of this company? A. Yes sir. Q. Do you understand these accounts? A. Yes sir.

Q. Do you know that Mr. Hoogewerff (appellant) carried an account there? A. Yes sir. Q. What account is this on page 10 if you know? A. The account of S. E. Hoogewerff.

Q. Is that a general or special account or what? A. That is no special account at all; he had no special account. Q. What was this account? A. His regular account, and he had an account No. 2.

Q. And the account No. 2 was found on page 580? A. Yes sir. Q. You are familiar with that account? A. Yes sir.” The record then states “The plaintiff thereupon offered in evidence the ledger mentioned in evidence and the following accounts therein.” To this appellant objected and his objeo tion was overruled and the evidence admitted.

The witness then upon cross-examination by appellant’s counsel was asked if he had anything to do with the making of entries in that book and answered “No;” that he might have put some entries in it when some of the other book-keepers were sick but it was ³⁸² not his regular work. He was asked further what he knew about the correctness of the book and said he could only say the books were balanced up at certain periods and they were proved; and then what he knew as to the correctness of the charges or the crediting of the various items between the two accounts of the appellant, and said that he knew nothing of that; that appellant may have given an order on one account arid it may have been credited on another; that as far as that went he did not recollect it; or he (appellant) might have told them “to put this on the wrong account;” he could not remember. It will be observed that the ledger in question and the entries therein were offered and admitted-as original and substantive evidence of the facts indicated by these entries. The foregoing statement of the testimony, preceding and introducing this offer of evidence, is sufficient to make manifest the error of its admission.

The entries in the ledger were not, or were not shown to be, original entries. The witness did not make them nor see them made, and expressly dis1 ' claimed any knowledge or recollection that would enable him to speak of their correctness but on the contrary suggested how they might be inaccurate. The principles, regulating the introduction of evidence of the character of that here in question, and determining its admissibility, have been so frequently explained and applied in our decisions and are so familiar in the text-books- that it is unnecessary to restate them here. Their application in sustaining the view we here express in ruling upon the exception, we are considering, will be sufficiently enforced by a reference to the cases of Owings, &c., v. Low, 5 Gill & John, 153; Lewis v. Kramer, &c., 3 Md. 265 ; McCann v. Sloan, 25 Md. 575—588.

We cannot regard the admission of this evidence as non-reversible error as we understand the appellee to argue. It is very evident that the appellee thought that the entries in question afforded inferences going to the vital questions in the case; and, assuming them to, have been properly in the case, they were, certainly, from the appellee’s standpoint, not unimportant in view of the issues that had been made up under ³⁸³ the pleadings. The appellant questioned the accuracy of the entries—certainly did not admit that they correctly represented the facts. He explained how he was without efficient means of contradiction because all of his own memoranda relating to the subject of the entries had been destroyed in the fire which had recently reduced to ruin a large section of the city of Baltimore, Under the circumstances the appellant could properly insist that the evidence in question sought to be offered against him, should be so offered under the safeguards which the law wisely provides shall attend the introduction of evidence of this character, unless he had, in some manner, waived his right in this regard, or estopped himself from asserting it.

It seems to be supposed that he waived this right because he had brought the book into Court and submitted to be questioned in regard to it in the cross-examination. If he was responsible for the physical presence of the book in Court he did not offer it in evidence, and could not have done so, against objection, without laying a proper foundation therefor. In his examination in chief as a witness there was no attempt to use the book nor any entry in it as evidence; and as far as appears from the record, as soon as the offer was made to introduce the book and its entries as evidence per, se the appellant’s objection was made. It is further, argued that appellant ought to be held as having waived objection to the admissibility of the evidence in question because of the reference to, and use made of, certain entries in the book in question by his counsel.

But this was after the book had been admitted in evidence against the objection of the appellant; and was apparently in the way of rebuttal. The appellant had the right then to make reference to any proper matter of rebuttal afforded by the entries and cannot be held to have forfeited any other right because of exercising this. If the matter made use of by the appellant in this connection was not competent evidence in the cause it could have been excluded by seasonable objection. The ruling of the Court below in the first exception must be reversed. ³⁸⁴ Now remains the excéption to the ruling upon the prayers.

The plaintiff offered four prayers and the defendant (appellant) three. Of these the Court granted the first and third of the plaintiff’s and rejected the second and fourth. The third of the plaintiff being granted in connection with the third of the defendant’s as modified by the Court. The defendant filed special exceptions to the first and third prayers of the plaintiff which were overruled.

The Court granted the first prayer of the defendant, rejected the second and modified the third arid granted it as modified. The first prayer of the appellee after its preliminary recitals is as follows “and requested the defendant to purchase for the plaintiff two hundred shares of the capital stock of the Amalgamated Copper Company, at and for a price not exceeding $53 per share, with the understanding and agreement that if the stock was so purchased at said price for the plaintiff, that the plaintiff should pay on account of said purchase price the sum of $2,000 and make such other payments from time to time as might be required by the defendant until said stock was fully paid for; and if the Court, sitting as a jury, shall further find that the defendant did on or about the 7th day of July, 1903', notify the plaintiff that he had purchased said stock at said price, and that the plaintiff, on or about the 7th day of July., 1903, paid on account of said purchase price to the defendant the sum of $2,000 and thereafter made payments on account of said stock as demanded by the defendant amounting to $5,800; and if the Court shall further find that after making said payinents the plaintiff called for the delivery of said stock to him and held himself ready and willing to pay the balance in full, with interest thereon for said stock at the price at which it had been purchased and that upon said offer the defendant declined or for any reason refused to deliver the stock to the plaintiff, then the plaintiff is entitled to a verdict of $5,800 with interest, in the discretion of the Court.” The appellant filed special exceptions to this instruction assigning as one of the grounds therefor that there was, in the cause, no^legally sufficient evidence that the stock in question ³⁸⁵ was to be paid for in installments as the prayer assumed. The prayer was clearly obnoxious to this objection. The theory of the plaintiff (appellee) as to the transaction, between him the defendant (appellant) was that it was an outright purchase of the stock that the appellant was to make with