Rasst v. Morris

Boyd, C. J., delivered the opinion of the Court. An attachment was issued by the appellee against the appellant on the 12th day of January, 1916, which was disposed of, and the case was tided on the short note, which states that the suit was instituted tp recover $29,900.00 due and owing from the defendant to the plaintiff for the value of $299,000.00 (face value) “C'arrancistas Constitutional Mexican Currency,” which was guaranteed by the defendant to be genuine but which was spurious, false and counterfeit. It is alleged to be the balance due under a contract of sale of property known as the Mount Vernon Brewery in Baltimore City. There are also six common counts in the short note.

There was filed with the short note an agreement dated the 10th day of September, 1915, which was executed under seal ²⁴⁷ by the plaintiff and the defendant, and an account for the purchase money of the property, as per contract, was attached thereto for $32,935.00, credited hy a mortgage of $12,500.00 and cash of $1,000.00, leaving a balance of $19,43(5.00, “which was to he paid under the contract in Oarraneistas Constitutional De Mexican Currency of the value in currency of the United States of America of $29,900.00.” The defendant filed the general issue pleas in assumpsit, and afterwards an additional plea of accord and satisfaction. On October 9, 1918, after a trial lasting several weeks-, a verdict was rendered in favor of the plaintiff for $12,000.00. A judgment wias entered on that verdict, and this appeal was. taken. Thirty-eight exceptions to rulings on the admissibility of evidence and one (39th) to those on the- prayers are in the record, which is a voluminons. one.

Possession was to be given under the contract on or before October 10, 1915, the title was to be clear of all encumbrances and satisfactory to the Title Guarantee & Trust Company. The plaintiff agreed to obtain a proper waiver from the owners of the leasehold interest of their right of redemption of a judgment in some ejectment proceedings which had recently been entered against them by the Safe Deposit & Trust Company, as trustee, which owned an annual ground rent of $1200.00 on the property. The title was originally in the name of the appellee, but be had conveyed it to the Baltimore Land Company, a corporation which he organized, and took a mortgage on it for $20,000.00. The Baltimore Land Company sold the leasehold interest to one William J. Houston, who gave a, mortgage to that company for $17,500.00 and the plaintiff was to release his mortgage, but it was not released of record.

Houston paid $5,000.00 on the mortgage given by him to the Land Company — having borrowed it from Mrs. C. H. Gordon, to whom he gave a mortgage on the property. Houston sold his interest to Richard S. Wolfe, who sold it to Alma C. Simonpietri. The appellee told Wolfe the $20,000.00 mortgage must be released at once, and that $5,000.00 of the ²⁴⁸ mortgage given by Houston had been paid, leaving a total indebtedness on the property of $11,500.00. There was default in the payment of ground rents and taxes and the Safe Deposit & Trust Company instituted an action of ejectment against Mrs. Simonpietri, the appellee, the Baltimore land Company and Mrs. Gordon, and the plaintiff was put. in possession of the property on July 15, 1915, under* a writ of possession.

On September 10, 1915, an agreement was entered into between the Safe Deposit & Trust Company, trustee, and the appellee, by which that company sold him all of its rights, title and interest in the property for the sum of $16,000.00, of which $1,000.00 was acknowledged to have been paid in cash, $2,500.00 was to be paid on the final ratification of the sale by the Circuit Oourt of Baltimore City, and the balance was to be secured by a purchase money mortgage described in the agreement. Reference was made to the ownership of the ground rent by the Safe Deposit & Trust Company and to the ejectment proceedings, as well as a statement that the property was sold subject to the right of redemption by the former owners and their mortgagees, and to existing tenancies as per leases thereto attached. The title was to be good and merchantable and the sale -was made subject to ratification by the Court. On September 11th the appellee assigned all of his right, title and interest in the contract and the property therein described to the appellant, and requested the Safe Deposit and Trust Company to report the sale to the appellant and to credit the $1,000.00 paid on account of the purchase price in accordance with the terms of the contract.

Below that assignment there is an acceptance under seal by the appellant,'dated September 11, 1915, as follows: “I do hereby accept the above assignment and do hereby covenant and agree to perform all of the covenants, terms and conditions of the within contract.” Three leases of parts of the improvements on the property were attached to that contract. The first exception was to the admission of that agrees meat, the assignment and accompanying papers. We can see ²⁴⁹ no valid objection to the action of the Court in admitting them, as the papers show what the parties agreed in writing should ha done. Nor was there any error in the second, third and fourth exceptions.

The fifth was abandoned. There was no error in the sixth or seventh exceptions. The important question in the ease was the genuineness of the currency given through the Title Company to the plaintiff by the defendant, and it was incumbent' on the plaintiff to show that he had used reasonable moans to ascertain whether it was genuine. He testified that he went to Mexico and made inquiries of various parties about the bills, which had been given to him.

The defendant first put up 133,000 pesos with the Title Company November 15, 1915, and he was to pay the Trust, Company $2,500.00 when they were ready to, deliver title to him, and he was to torn over the balance of the 299,000 pesos. In March, 1916, 100,000 pesos, which Mr. Fairbank had delivered to the plaintiff under an arrangement between him and the defendant; were returned to Mr. Fairbank, attorney for the Title Company, and Mr. O’Dunne, who was then counsel for the defendant, excepting a few which were held as samples. There was no error in the eighth exception. It was wholly immaterial what capital stock the Baltimore Land Company had outstanding.

We do not understand any reason for the plaintiff objecting to the introduction of the letter of H. M. Herr to the Title Company, dated January 24, 1916, or how the defendant could have been injured by its, being ruled out. ^ Without giving other reasons,, it is sufficient to say that that letter Was subsequently introduced in evidence, and read to the jury without, objection. There was, therefore, no reversible error in the ninth exception. Nor do we see how any injury could have been done the defendant by the admission in the tenth exception of the application of the defendant to the Title Company for a title insurance policy. There is likewise no reversible error in the eleventh exception, which was taken to the admission of a plat of the property in question. ²⁵⁰ The twelfth exception was likewise without merit.

Mr. Fairbank had in a previous part of his evidence said that he did not know of any other papers except the contract. That was admitted without objection, and hence even if the evidence embraced in this exception had been stricken out, the former testimony would have been before the jury. In addition to that, the testimony was given without objection, and, if it was inadmissible, it should have-been objected to at the time it was offered, as no reason is shown why its inadmissibility could not have been known at the time it was offered. Without regard to those reasons, however, which may be said to be technical, we are not prepared to hold the evidence inadmissible.

Mr. Fairbank was, it is true, attorney for Mr. Easst part of the time, but for the most part he was acting for the Title Company, and there is nothing in the record to show that he disclosed any confidential communications between him and Easst. Without deeming it necessary to enter into a discussion of the subject, we will refer to 4 Wigmore on Evidence, sections 2290 to 2329, inclusive, and particularly Section 2297, where it is said: “The circumstances of each case mtust affect the result, but in general a strict construction is the proper one, especially in those cases where attorneys combine the occupation of real estate and insurance brokers or act as executive officers of a corporate business.’’ It would be carrying the doctrine of privilege to an unreasonable extent to hold that the evidence sought to be stricken out in that exception was inadmissible under the circumstances of this case. There is nothing in Crane v. Barkdoll, 59 Md. 538 , cited by appellant, or other cases in this State, in conflict with that conclusion. There was no error in the thirteenth or fourteenth exception.

It was admissible to show that the time for the owners of the leasehold interest to redeem had expired on March 9, 1916, when an agreement between the parties in reference to the Mexican currency was made. If so, it would not be very material whether the deeds which Mr. Fairbank ²⁵¹ had in his possession were recorded. There may be some question whether that was the way to prove it, but as. the fact was that the time had expired, there was no. reversible error in the fifteenth or sixteenth exception. Moreover, the answer to the question in the sixteenth is not in the record.

The seventeenth and eighteenth exceptions can he considered together. Alfredo Oaturegli’s deposition was offered by the plaintiff, and he testified that he was a civil engineer and that he was Consul-General in New York, representing the-Carranza Government, in October, 1915, when the defendant called at his office in reference to the sale of some Carranza Constitutional paper; that he was not interested in the purchase of paper, hut after examining and making a special note of that shown him, he told the defendant that it looked good, hut he could not decide, as he had no authority to pronounce anything regarding its validity, and advised him to send it to Mexico for the proper officer of the Government to decide whether it was good or not. He said that there was a large amount o-f counterfeit paper in circulation, “and the Government had established an officer, who by decree was named as the only officer authorized to pass on the validity of the paper.” He was. asked: “Do- you know the prevailing prices of exchange for Carranza Constitutional Currency in the months of September, October, November and December, 1915, and January, 1916, in American exchange or American money?” and answered: “Yes, I can say which was the price at the time, based on the documents, and decrees from the Government which has established the average price prer vailing each month since the year 1913, to the year 1916; in these three years the Government has published a list of the prices that prevailed every month between those dates." He was then asked: “What were the prices prevailing ?” and answered: “The prevailing price was, I have seen yesterday, 6% cents American money, corresponding to 13 cents. Mexican money, between 6% and 7 cents, was. the price prevailing-in the months of September, October and November, and ²⁵² according with that list of values that has been published officially by the Mexican Government.” In the eighteenth exception he was asked: “Doctor, do you know of your own knowledge that the prices- which you have mentioned were the prevailing prices for those months in the fall of 1915, based upon exchange for American currency ?” and replied: “Yes, I know that of my own knowledge.

If you consider the equivalents at par between Mexican money and American money because the prices have been fixed in Mexican money in official prices and have been fixed in Mexican money and the normal rate of exchange is two to one, and that meant that the price was 13 cents Mexican money silver, which corresponds to 71/2 cents American money. In other words, it took 13 cents' Mexican silver money to- amount to 7 cents in American money, o-r 6% cents American money,” etc. There was error in admitting that testimony. It is apparent that the witness knew nothing about the values of such currency in the months mentioned, excepting from such information as he obtained from the list of prices published by the Government. He said: “The prevailing price was, I have seen yesterday,” etc. To accept the value fixed by decree of any Government of its paper money is questionable enough, but to hold that it can be fixed as this witness fixed it, from documents and decrees of a Government which at that time was not even recognized by our Government, and was first at one place and then at another, depending upon the success of its army, would be going very far”.

Conditions in Mexico at that time are matters of history, well known to the people of this country, and there is evidence in the record that the value of this money was one, two or three cents per peso, sometimes a quarter of a cent — “it all depended on the news they received in Mexico City as the results of the fighting — Carranza was sometimes in Mexico City with his army and sometimes in the mountains in the north of Mexico.” It is not definitely shown by whom the documents and decrees were issued, or by what authority ²⁵³ the list of prices was made up. But this transaction was in Baltimore and not in Mexico. Even if the money was required to be accepted at certain prices within the territory then controlled hv the Carranza Government, it did not follow- that it was of that value in Baltimore or, if there was no market value in Baltimore, in New York or some place where we could properly ascertain its value here. It is true that by the contract between these parties it was agreed that $19,435.00 was “to he represented by the acceptance of $299,000.00 in Oarrancistas Constitutionalista Be Mexico Currency,” but it was “without any obligation on the part of the purchaser to guarantee the value in IT.

S. currency of the said Mexican- money.” Under that agreement payment could have been made with that amount of Mexican currency, whether it was worth 1 cent or G% cents per peso. There is evidence in the record that the money was only worth from 2% to 4 cents in September, and that it went down afterwards. But» beyond all that, how can the plaintiff claim that there was a breach by the defendant in September, October, November or December, 1915 ? The sale by the Safe Deposit Company was not ratified until October 30th, the deed was not made until November 15, 1915.

It could not be pretended that there was a default ■on the part of the defendant before November 1st, as the plaintiff could not give the defendant title in fee, as was .agreed, yet this witness- was permitted to testify as to values of the pesos in September and October. But that is not all, for the plaintiff has not paid the $2,500.00 or other money he was to pay, inasmuch as the defendant had to pay .$2,500.00 to the Safe Deposit Company in part payment for the legal title and had to agree to pay 6 per cent, interest on the mortgage, instead of five which plaintiff had agreed to accept, and some other amounts plaintiff was to pay. He made some arrangement with Mr. Kerr, of Virginia, who .sent his check for $2,500.00 in a letter- dated November 1, 1915, to the Title Company, to he held in escrow. That ²⁵⁴ company was authorized hy the letter to receive the Mexican currency, “and reasonable opportunity to be afforded said Morris or his representatives, for inspection and verification, as to the validity of said currency; said inspection to be completed on or Jiefore November 21, 1915,” and if the inspection was not completed by that time the check was to be returned to Mr. Kerr.

There could, therefore, be no default before November 21st, and in addition to that,' if the $2,500.00 had been paid without any conditions, it was not suificient to pay what the plaintiff had agreed to pay. Then until January 15, 1916, the mortgagees and former owners of the leasehold interest could redeem. Up to that time the plaintiff had not so far performed his part of the contract, or shown that he had offered to perform it, as to put the defendant in default. We do not find that any deed or waiver from Mrs. Gordon was executed, or at least tendered to the defendant or the Title Company.

The value of the Mexican currency was, therefore, clearly not to be fixed as of September, October, November or December, and the testimony was inadmissible. There was then error in the seventeenth and eighteenth exceptions, and in the nineteenth for some of the reasons given in referring„to them. ■ We do not find any error in the twentieth, twenty-first, twent-second, twenty-third or twenty-fourth exceptions, as we think those witnesses were shown to be qualified to testify as experts. The statement of the witness in the twenty-first exception was simply to emphasize the fact that his experience had caused him to give special attention to the Mexican currency. The twenty-fifth exception’ was to the exclusion of a deposition taken under Section 17 of Article 35 of the Code, pending the trial of the case.

It was .objected to on the ground that a deposition could not be taken while the case was actually on trial and because sufficient notice was not given. There is nothing in the statute which in terms prohibits testimony from being taken while a trial is pending, and that should be largely left to the discretion of the ²⁵⁵ trial Court. The greatest difficulty that occurs to us is that the statute provides that depositions taken under that section “shall be treated in all respects as if taken under a commission regularly issued by said Court, and shall be subject to the like exceptions as testimony taken under commission.” The rule of the lower Court is not in the record, but most Courts in this State have