Potomac Bottling Works v. A. H. Barber & Co.

McSherry, C. J., delivered the opinion of the Court. There are two bills of exception in the, récord now before us. One relates to the ruling of the trial Court which admitted in evidence certain testimony taken under a commission executed in Chicago; and the other concerns the action of the lower Court u'pon a prayer presented by the defendants. The verdict and judgment were in favor of the plaintiff and the defendants have appealed.

Suit was brought in the Circuit Court for Allegany County by A. H. Barber & Company against The Potomac Bottling Works, to recover a balance due on a sale of a quantity of eggs. All the evidence adduced by the plaintiff was taken under the commission above alluded to, and as the right of the plaintiff to recover depends entirely on that evidence its admissibility will be considered at once. The two objections to this evidence relied on in the argument are founded on a supposed irregularity in the method of signing the depositions; and upon the fact that copies of certain letters are annexed to the depositions though no notice had been given to the defendants to produce the originals. It appears by the docket entries and the return of the commissioner that by leave of the Court a formal commission was issued to Charles' S. Schoenmann, of Chicago, who, in execution of the commission duly swore and examined the witnesses produced before him on the interrogatories sent with the commission.

Instead of ⁵¹¹ each witness signing the deposition made by him, there is at the close of all the depositions and immediately preceding the return of the commissioner a sheet of paper containing separate certificates signed by each witness certifying that he has “read the within testimony and the same is true as to his testimony herein given.” Each witness examined, signed such a certificate, and the commissioner wrote beneath each signature the words, “Subscribed and sworn to before me this 4th day of October, 1905, C. S. Schoenmann, Notary Public.” This was a sufficient signing by the witnesses, even if the statute under which the commission was issued had required in express term's that the witnesses should sign the depositions. There is, however, no such express provisions. The commission was issued under sec. 16, Art. 33, Code of 1904, being sec. 13, Art. 33, Code of 1888; and whilst depositions taken under sec. ij of Art. 33, Code of 1904, or sec. 16 of Art. 33, Code of 1888, are distinctly required to be signed when no commission has been issued, no such requirement is found in direct terms in the section under which the commission in this case was issued. Even if the copies of letters written by the plaintiff to the defendants should not have been appended to fhe depositions unless the defendants had been given previously, due notice to produce the originals, that fact was no cause to warrant the exclusion of all the evidence taken under the commission.

The particular copies objected to should have been designated, and if the objection had been well taken as to them they would have been excluded. That was not done, and the Court was clearly right in overruling both of the objections which were made; and there was no error committed in permitting the depositions to be read in evidence. Secondly. At the close of the case the defendants offered the following prayer which the Court rejected: “That the ‘wire’ of the defendants and the letter of the plaintiff referring to same of November 20th, 1903, offered in evidence constitutes one indivisible contract, and if it be found from the evidence that defendants suffered the loss equal to the plain ⁵¹² tiff’s claim by reason of the failure of the plaintiff to ship the second installment of eggs on November 25th as plaintiff had agreed to do, then the plaintiff cannot recover in this case.” A’ brief reference to the facts now becomes necessary in order that it may be seen whether the ruling on the prayer was right.

Obviously the first inquiry which the prayer as framed presents is this: Do the telegram and letter therein referred to evidence of themselves and without more, the contract between the parties ? The telegram is as follows: “Ship hunhred at once and hundred Nov. twenty-fifth, eggs. Potomac Bottling Company.” The letter in reply thereto is in these words: “We received your wire of yesterday this morning as follows: ‘Ship hundred at once and hundred Nov. 25th, eggs.’ We are shipping the hundred today and have entered the order for the other for the 25th, these are good eggs with the exception of the loss that we have written you about. It looks very much like eggs were