Medairy v. McAllister

⁴⁹⁰ Boyd, J., delivered the opinion of the Court. This suit was instituted by the appellee against S. B. Me-dairy, J. K. Bosee, C. G. Wanner and the Wholesale and Retail Butter Dealers’ Protective Association of Baltimore City for entering the plaintiff’s place of business and forcibly taking and carrying away a tub of oleomargarine. The defendants filed the general issue plea and a second plea which was demurred to and the demurrer was sustained. It was defective, but if it was not it could not be reviewed by us, as the defendants filed an amended second plea.

When under leave to amend, a new plea bearing the same number as the original one is filed, the first will be considered as withdrawn. Lake v. Thomas, 84 Md. 608 . The amended second plea alleged that the defendants had consulted counsel learned in the law, had laid before him all the material facts within their knowledge,' of and concerning the plaintiff’s business, and concealed nothing material, and they were advised by the said counsel to take the package of oleomargarine, to be used in a subsequent prosecution of the plaintiff, and they acted under his advice, believing the same to be sound, and without malice. A demurrer to that plea was also sustained and there can be no doubt that it was demurrable.

We are not aware of any authority that would excuse a defendant for the seizure of another’s goods because his counsel advised him to do so. The plea was offered as a bar to recovery, and therefore it is unnecessary to consider how far such facts as it alleges could be introduced for the purpose of denying malice. But it is contended that the declaration was defective and the demurrer to the plea presents for determination its validity. In the first place it is said that it fails to show that the oleomargarine was imported from without the State and that it was not a deleterious product.

Without deeming it necessary to determine whether the plaintiff would be entitled to recover in an action of this kind, if no oleomargarine could be lawfully sold, it is sufficient to say that the nar. does not disclose any fact that made its possession unlawful. It was alleged to be in the original package, and for aught that appears ⁴⁹¹ in the declaration, may have been of the character that was expressly authorized to be sold by Art. 27, sec. 88, of the Code, as amended by the Act of 1900, ch. 496. If it was not, but was shipped from another State, in the original package, the case of McAllister v. State, 94 Md. 290 , protected it and there is no presumption that it was held in violation of the law. We held in Wagner v. Upshur, 95 Md. 519 , that the plaintiff could recover, in an action of replevin, a gambling instrument which could be put to a legitimate use, and that such instrument could not be summarily seized by the police under its power to prevent crime, until it had been determined in a criminal proceeding that the article was held or used for an illegal purpose by the person from whose possession it was taken.

When then oleomargarine may under some conditions be lawfully possessed and sold, a declaration which does not disclose any unlawful use of it certainly cannot be defective because it does not negative such facts as make its possession unlawful. It is also contended that the declaration is defective, because it alleges in one count a trespass quare clausum, fregit, a trespass de bonis asportatis, and injury to the plaintiff’s business. The allegation is that the defendants “unlawfully entered the plaintiff’s place of business * * * and forcibly took and carried away the plaintiff’s goods, etc.” That can hardly be said to be an action of trespass quare clausum fregit, in which the gist of the action is the injury to the possession, for the declaration shows that the ground of action was the asportation of the goods, and does not allege that the defendants broke and entered, etc. But, if it be conceded that it does embrace the two, it would by no means be an unusual practice in this State. Take for example the case of Barton Coal Company v. Cox, 39 Md. 1 , in which the Court said: “The declaration was filed in the names of the co-plaintiffs, containing three counts, which, as far as the distinctive forms of actions can be recognized in our present system of pleading, may be designated as trespass quare clausum fregit et de bonis asportatis combined.

The first count is a general one, charging that the ⁴⁹² defendant broke and entered the locus in quo and mined, dug, excavated and carried away large quantities of coal.” The second and-third counts set out the trespasses with greater minuteness, but in substance made the same allegations as in the first. That is the form adopted in this State in such actions, as will be seen in Franklin Coal Company v. McMillan, 49 Md. 549 , and Blaen Avon Coal Company v. McCulloh, 59 Md. 403 . The allegation as to the injury of the plaintiff’s business was only intended to enhance the damages. Under our system of pleading the declaration was sufficient.

The first exception was to the refusal of the Court to permit the defendants to ask the plaintiff for whom he sold butter, but as its relevancy does not appear, we will not discuss it, especially as the Court subsequently instructed the jury that there was no evidence of damage to the plaintiff’s business. The second bill of exceptions presents the ruling on two prayers offered by the defendants at the close of the plaintiff’s testimony, but as the defendants then proceeded with their testimony, the exceptions to those rulings were waived. In order that later proceedings may be understood; it is proper, however, to add that the Court then instructed the jury that the plaintiff had not offered sufficient legal evidence against Mr. Bosee and the Butter Dealers’ Association to warrant the jury in finding against them, and a verdict was accordingly rendered in their favor at that time. The third exception contains an offer to prove, by a member of the police force in Baltimore, what his orders were with respect to the plaintiff, and his having oleomargarine in his possesion in November, 1900.

The Court properly sustained an objection to that. The fourth presents the ruling of the Court on an offer toshpw by the secretary of the Board of Police Commissioners, and a copy of the order of the marshal of police, that the police captains of the city were directed, upon the faith of an opinion of the counsel of the board, “to take certain action looking to the arrest of alleged violators of the oleomargarine law.” An objection to that was properly sustained, as was also the one in the offer in the fifth bill of exceptions that the plaintiff was ⁴⁹³ convicted in 1890 for the violation of the oleomargarine laws. ’ At the conclusion of the whole testimony, the plaintiff offered three prayers which were granted, and the defendants offered ten, all of which were rejected excepting the fifth. Those offered at the conclusion of the plaintiff’s testimony were apparently renewed, although the first is marked “offered at close of plaintiff’s case.” That prayer asked the Court to instruct the jury that the plaintiff had not offered legally sufficient evidence to warrant the jury in finding against Medairy, Bosee and the Butter Association and their verdict must be for said defendants. That was granted by the Court at the end of plaintiff’s case, after striking out the name of Mr. Me-dairy, and at the conclusion of all the testimony, the same prayer was apparently offered and the same modification made, and it was then again granted as modified.

In order to properly raise the question of the legal sufficiency of the evidence against Medairy, there ought to have been a prayer offered as to him alone—the other two defendants named in the prayer having already had a verdict entered in their favor, and the Court would therefore have been justified in then rejecting this prayer as offered. But as the sixth bill of exceptions says it was granted with the modification, and an exception was taken to the striking out of Mr. Medairy's name, we will treat it as thus disposed of at the end of the case. There can be no doubt about the sufficiency of the evidence against Mr. Wanner, and therefore the second and third prayers of the defendants were properly rejected, as they sought to withdraw the case from the jury. By the plaintiff’s first prayer, the Court instructed the jury “that it being the undisputed evidence in this case that the defendant, Charles G. Wanner, did on or about the 22nd day of November, 1900, take and carry off from the possession of the plaintiff the goods mentioned in the declaration, their verdict must be for the plaintiff as against said Wanner.

And if the jury find that the said Wanner in taking and carrying off said goods was acting as the agent or by the authority or insrtuctions of the defendant, S. B. Mediary, then the verdict of the ⁴⁹⁴ jury must be for the plaintiff as against both of said defendants.” There was no special exception to this prayer, to the effect that there was no legally sufficient evidence of those facts, as to Mediary, but assuming that the defendant’s first prayer presented that question, we will now consider it. Three of the plaintiff’s and one of the defendant’s witnesses testified that when Wanner took the oleomargarine, he said he did so by the direction of Medairy. That of itself would not .be sufficient to establish that fact, as Medairy could not be held liable by such statement of Wanner, made out of his presence. But there was ample testimony to justify the Court in submitting to the jury the question of Medairy’s liability.

Wanner went with the city detectives to the plaintiff’s place of business and