Mount Vernon Brewing Co. v. Teschner

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment rendered against the appellant, in favor of the appellee, on a guarantee made by the former. On October 31st, 1906, the appellant entered into a contract with J. E. Newman & Co. of Pittsburg by which the latter sold to the former 15,000 bushels of fancy malt at 6i cts. per bushel, screened, f. o. b. cars, Baltimore,. “To be shipped in bags as ordered during season, ending December 31st, 1907.” At the bottom of the contract there is written, “Deliver the within contract to Mr. Oscar Teschneror order,” signed “Mt.' Vernon Brewing Co., J. M. Jackson, Prest.” The plaintiff testified that he had some conversation with Mr. Jackson in which the latter told him he had bought more malt than he wanted, and requested him to sell the fifteen thousand bushels for him. He declined to dp that, but said that if the defendant would give him its guarantee for delivery of the contract of Newman & Co., he would pay it 67 cts. per bushel, f. o. b.

Baltimore, “which offer was accepted and the contract turned over to the plaintiff, properly transferred ¹⁶² and endorsed, and that the defendant gave him a guarantee in writing.” The guarantee spoken of, which was dated March 8th, 1907, is addressed to the appellee, and is as follows: “We hereby guarantee the delivery of malt purchased from J. E. Newman & Co., Pittsburg, Pa., as per contract herewith enclosed," and is signed by the company through its president. The'account filed, as the basis of this suit, was for the difference between the market value of the malt on April 18th, 1907, the alleged date of refusal to deliver, and the contract price (p7}4 cts. per bushel) — the account stating the market price to have been 95 cts. per bushel. The verdict was for $3,750, which indicates that the jury determined the market price to be 92^ cents per bushel. 1. In the course of the trial the defendant took nine excep- ■ tions.

The first was from the refusal of the Court to grant a motion “to strike out all the testimony on the direct examination which was in regard to any correspondence or conversations had between the appellee and J. E. Newman & Co. ,that it be stricken out on the ground that the correspondence had not been produced and we have not had the opportunity to cross examine the witness on it.” That motion was made while the plaintiff, who was the first witness, was on the stand. It could not prevail for technical reasons, if it had been otherwise proper. In the first place, it does not appear that any objection was made to the testimony when offered, and, then, a copy of the letter from J. E. Newman & Co. was introduced, without objection so far as the record discloses. If a witness testifies to'certain facts, and it is subsequently developed that they were in writing, the trial Court may very properly direct that such testimony be stricken out, unless the writing is produced, or its absence accounted for in such way as to authorize secondary evidence, but the motion must then be so framed as to confine it to the objectionable testimony, and should not ordinarily be granted if it appeared when the testimony was offered that it was in writing, but was not objected to at the time.

Then, this motion was too broad, as it not only included the copy of the letter spoken of, which had been ad ¹⁶³ mitted without objection, but it also included conversations. But in addition to that, the witness had testified that he had instructed his counsel to call upon Newman & Co. to deliver the malt, which was done about the 17th or 18th of April. The letters which passed between them were afterwards produced when Mr. Harman, who wrote them, was on the stand. So without further discussing this exception, we think it was properly overruled, and, even if there had been any error in the ruling, the subsequent production of the letters, which were those relied on, avoided any injury that the appellant might have sustained by their non-production. 2.

The letter of the appellee’s attorneys of April 17th, which was offered in evidence, shows that they notified J. E. Newman & Co. that their client was ready to pay for the malt on delivery, by giving his note for ninety days, as mentioned in the contract, or by payment of cash on receipt of car, and requested them to inform them when they would be ready to make the shipment. Newman & Co. replied on April 18th, “we are making deliveries against this contract. As far as Mr. Teschner is concerned, we know nothing about his transactions. ’ ’ On April-19th the attorneys again demanded of Newman & Co. delivery of the malt to the appellee, and informed them that unless there was prompt compliance with their request, they would institute proceedings to protect their client’s interests, and on April 22nd wrote to the appellant that they had notified Newman & Co. that unless there was an immediate compliance with the order they would institute proceedings.. The appellant had previously (March 1 ith) written to the appellee, who was then in New York endeavoring to sell the contract, that “from advices which we have received today from Pittsburg, we decline on any condition whatsoever to guarantee the deliveries of malt as per contract from J. E. Newman & Co. We therefore do not think it would be advisable to sell the contract.” The plaintiff produced as a witness Henry G. Remers, of Baltimore, who had been in the malt business for thirty years, including 1907.

He had testified that the Journal of Com ¹⁶⁴ merce, which is published in New York, gives quotations of the market prices of malt from day to day. He was then asked “does the price in New York differ from the price in Baltimore?” An objection to that question having been overruled, an exception was taken, which is presented by the second bill of exceptions. If it is admissible to prove the market prices of articles by newspapers, which we will consider presently, we can see no objection to this question. If the witness had replied in the negative, one way of showing the market price in Baltimore was by proving what it was in •New York.

But at any rate, it was simply leading up to the more important questions which are presented by the third and fourth bills of exception, and could not have injured the appellant. 3. The witness answered the above question by saying, “I couldn’t say. It may differ a cent or two on' account of the difference in the rate of freight, but I don’t do any business on the New York market, only here in Baltimore. I can only testify to the quotations for the city of Baltimore and Washington.” He said he considered the quotations in the New York Journal of Commerce a good guide to go'by, and that it was entirely reliable.

The plaintiff then handed the witness a copy of that paper dated March nth, 1907, which he identified, and the plaintiff offered it in evidence, “and read from it to the jury a quotation of season’s contracts for malt at eighty-five to ninety cents.” The defendant objected to the paper being put in evidence and to reading the quotations, but the Court overruled the objection, which ruling constitutes the third bill of exceptions. The fourth exception was to allowing a copy of the paper of March 25th and those of April 15th, April 25th and May 3rd were also mentioned, but the question calling for them does not appear to have been excepted to. The defendant made a motion to have the newspapers ruled out but it was overruled and the ruling constitutes the fifth bill of exceptions. We shall consider the third, fourth and fifth together. ' The precise questions involved in these exceptions have not ¹⁶⁵ been passed on by this Court, although those more or less analogous have been referred to.

Tn Munshower v. State, 55 Md. 24 , the question was whether Gruber’s Almanac was admissible in evidence to prove the hour the moon rose on a certain night, which it was conceded had, become material and competent for the State to show. In discussing the subject Judge Miller, who delivered the opinion, said, that “Courts have received as evidence weather reports, reports of the state of the markets, price currents, and insurance tables tending to show the probable duration of human life, though these are records which are not capable of mathematical demonstration, which cannot be tested by any certain law, and which may or may not omit the record of changes which have actually taken. place.” In Morris & Co. v. Columbian Iron Works, 76 Md. 354 , it was held that “lists” which were promulgated by an authority which dealers in hardware recognized and followed, could be used by witnesses to refresh their memories as to the prices of certain articles — the witnesses having testified as to the correctness of the lists and to the impossibility of any one carrying all the prices in his mind. And in Knickerbocker Ice Co. v. Gardiner Dairy Co., decided at the last January Term, 107 Md., we quoted with approval from 2 Wigmore on Ev., sec. 2155, as to evidence of certain conversations by telephone being sufficient to go to the jury “just as testimony based on prices current is received (ante sec. 719).” The ruléis thus stated in 16 Cyc., 1143: “The usual records of sales or of offers to purchase or sell, such as newspaper market reports or prices current, are deemed competent evidence of market value, especially when accredited by the party against whom they are offered. But prices current of dealers or in newspapers must be shown to represent actual or proposed transactions and it ought to appear that the prices were promulgated from authoritative sources in good faith in the usual course of business.” Clicquot v. U. S., 3 Wall. 114 , is a leading case on the general subject.

That was a proceeding for the forfeiture of certain baskets of champagne, which had been shipped from Bordeaux, France, on the ground that ¹⁶⁶ the market value at the time and place when and where it was procured or manifested had been falsely stated, when entered at the office of collector of customs. A price current furnished by an agent of the claimant was held to be admissible, and also one that had been furnished to the witness by another house in Paris, at which he had inquired of the proprietor the wholesale prices of various wines. The Supreme Court in passing on the admissibility of the evidence referred to the statement in Lush v. Druse, 4 Wend. 313 , that “The proof was by a witness who had inquired of merchants dealing in the article, and examined their books. This, uncontradicted, was sufficient;” and the Supreme Court then said, “With this ruling we are satisfied.

While Courts, in the administration of the law of evidence, should be careful not to open the door to falsehood, they should be equally careful not to shut out truth. They should not encumber the law with rules that will involve labor and expense to the parties and delay the progress of the remedy — itself a serious evil— without giving any additional safeguard to the interests of justice. We think the price current is not liable to the objection that it was hearsay. It was prepared and used by the party who furnished it in the ordinary course of his business.

It is as little liable to that objection as the entries in the books of the dealer, or his answers to the inquiries of a witness, both of which were admissible upon the authority of the case referred to in Wendell. It was clearly relevant. What effect it should have, in connection with the other evidence adduced by the parties, was a question for the jury.” See also Fenestein v. U. S., 3 Wall. 145 . The case of Whelan v. Lynch, 60 N. Y. 469 , is much relied on by the appellant and has been cited with approval in other cases.

It was there said: “The Court was also in error, I think, in admitting the shipping and Price Current List as evidence of the value of the wool, without some proof showing how or in what manner it was made up; where the information it contained was obtained, or whether the quotations of prices made were derived from actual sales, or otherwise. It is not ¹⁶⁷ plain how a newspaper, containing the price current of merchandise, of itself, and aside from any explanation as to the authority from which it was obtained, can be made legitimate evidence of the facts stated. The accuracy and correctness of such publications depend entirely upon the source from which the information is derived. Mere quotations from other newspapers, or information obtained from those who have not the means of procuring it, would be entitled to but little if any weight.

The credit to be given to such testimony must be governed by extrinsic evidence, and cannot be determined by the newspaper itself without some proof of knowledge of the-mode in which the list was made out.” In Fairley v. Smith, 87 N. C. 367 , the question was whether a witness, who had no knowledge on the subject excepting from what he had gathered from a daily newspaper, published in Charlotte, North Carolina, could testify as to the market value of cotton in Boston. The Court very properly held that such evidence should have been excluded, under the circumstances in that case, and after citing a number of authorities said, “From this review of decided cases, it is plain the evidence received in the present case has none of those essential safeguards to insure the accuracy of the published information, as to the state of a distant market, to warrant its unqualified submission to the jnry. It does not appear that business men acted upon this information, as truthful and correct, in their transactions with each other; nor from what source the information itself comes. * * * We therefore think there was error in the admission of the evidence, thus obtained by the witness, and without any proof outside the paper of its