New York, Philadelphia & Norfolk Railway Co. v. Bates

Miller, J., delivered the opinion of the Court. This was an action of assumpsit brought by the appellee against the appellant, to recover for thirteen and one-half months’ services from the 13th of November, 1882, to the 30th of December, 1883, as superintendent of the construction of part of the defendant’s road, at $75 per month. The amount claimed to be due by the bill of particulars, after deducting credits, was $713.21, and at the trial the jury gave a verdict in favor of the plaintiff for that sum. The exceptions taken relate entirely to the rulings of the Court upon certain prayers offered by the defendant, ¹⁹² (none appearing to have been offered by the plaintiff,) and these rulings alone are before us for review.

There was some discussion at bar as to the pleadings, but none of the prayers make any reference to the pleadings, nor was there any ruling made by the Court below involving the admissibility of testimony. No question therefore as to the sufficiency of the pleadings is open for review in this Court. Leopard vs. Ches. & Ohio Canal Co., 1 Gill, 222 ; Dorsey vs. Dashiell, 1 Md., 201 . In oxxr opinion the learned Jxxdge before whom this case was tried, fell into error in his action in granting the defendant’s second prayer as modified by him, and in granting, at the same time, the defendant’s sixth prayer.

By the fix’st the jury were instructed that if they found the facts stated in the prayer and in the modification thereof made by the Court, they were “at liberty to consider the letter of the 21st of February, 1884, from the plaintiff to the witness Painter, as axxthority to said Painter simply to procure an adjustment and allowance of the vouchers therein mentioned by the defendant;” and by the second they xvere instructed that upon finding the same facts they were at liberty to consider this letter “as authority to said Painter to adjust or to receive payment of the vouchers above referred to.” To allow the jury upon the same state of facts to place two different and inconsistent interpretations upon a written instrument, which it was the province of the Court itself to construe, was certainly a fatal error in the trial of the case. The jury ought to have had a. plain and definite instruction from the Court as to the extent of the authority which the plaintiff gave to Painter by this letter, for in our judgment the case in a great measure depends upon its true construction in this respect, in view of the facts disclosed by the record. What then is the construction and effect of this letter, in view of the testimony found in the record ? The two main witnesses in the case were the plaintiff and Uriah U. ¹⁹³ Painter.

On some points their testimony is conflicting, but there seems to be no dispute as to' the following facts: Painter was president of the defendant company during the period covered by the plaintiff’s claim, and so continued up to the 21st of January, 1884, but on that day he ceased to be president, and was succeeded by Mr. William L. Scott. The plaintiff sent and delivered the monthly vouchers for his salary to Painter in Washington, and at the latter’s request. These vouchers when thus sent and delivered were receipted by the plaintiff, in accordance with the custom and requirement of the company in regard to all vouchers. Those of them covering the amount sued for were never paid by the company, and remained in Painter’s possession up to the date of the letter in question.

Thus far there appears no conflict of testimony. Painter then testifies that on the 30th of December, 1883, he had a conversation with the plaintiff about his vouchers in his (witness’) office in Washington ; that he then told the plaintiff that he (witness) had disposed of his interest in the railroad and had nothing more to do with it; that he, witness, had some vouchers of his own, and if the plaintiff desired it he would put plaintiff’s vouchers on the same footing with his own, and plaintiff said “ that was all right;’’ that he took out the plaintiff’s vouchers and said that he had not up to that time approved them, and told him they had never been adjusted, and that he would see the General (General William Painter, the brother of the witness, and the vice-president of the company) about them, and see what could be done, and plaintiff said “all right,” and he and witness went to Philadelphia the next day; that in the latter part of February, 1884, General Painter brought him the letter in question dated the 21st of February,