Sergeant Co. v. Pickett

Levine, J., delivered the opinion of the Court. The narrow question raised in this appeal concerns the adequacy of an exception, entered pursuant to Maryland Rule 554, to a trial judge’s refusal to grant a requested jury instruction submitted in the form of a written prayer. The Court of Special Appeals in an unreported opinion, The Sergeant Company, et al. v. Ronald W. Pickett, No. 452, September Term, 1977, decided December 27, 1977, held that the exception at issue here failed to comply with the dictates of the rule. We granted certiorari and now reverse.

The present appeal arises out of an action for breach of contract brought in the Circuit Court for Charles County by appellee Ronald W. Pickett (Pickett) against appellants, The Sergeant Company (Sergeant) and Fidelity Federal Savings & Loan Association, formerly known as Waldorf Federal Savings & Loan Association (Fidelity). In his declaration, Pickett, a builder of residential dwellings, alleged that on payment of a valid consideration, Sergeant, acting on its own behalf and as agent for Fidelity, had procured for him a commitment for a permanent mortgage loan which he had accepted. Pickett further alleged that despite this binding obligation, Fidelity and Sergeant had breached the agreement by utilizing the funds earmarked for the Pickett account to make a loan to another borrower. As a consequence, Pickett allegedly incurred various items of damage, consisting primarily of profits lost from expected house sales.

Sergeant responded with a counterclaim, seeking payment for the unpaid portion of the monies which it claimed to be owed for obtaining the loan commitment. The counterclaim alleged that Sergeant had fully performed its bargain by obtaining the commitment, thus entitling it to fees and commissions upon Pickett’s acceptance of the loan. Ultimately a jury awarded Pickett a judgment of $53,450 against appellees and also found in his favor on the counterclaim. At the conclusion of the trial, appellants submitted an ²⁸⁶ assortment of jury prayers to the court, among them their requested instruction No. 10: “Where one party to a contract commits a breach of contract, the other party is required by the ‘avoidable consequences’ rule of damages to make all reasonable efforts to minimize the loss he sustains as a result of the breach, and he can charge the party in default with such damages only as, with reasonable endeavors and expense and without risk of additional substantial loss or injury, he could not prevent.

M & R Contractors & Builders, Inc. v. Michael, 1958 138 A. 2d 350 , 215 Md. 340 .” This was not read by the trial court during the course of its ensuing charge to the jury, nor was the principle of law adverted to in the prayer otherwise included in its instructions. At a bench conference following the charge to the jury, counsel for appellants noted several exceptions to the court’s failure to include certain of the prayers which had been previously submitted. “[Counsel for Appellants]: I would take exception to failure of the Court to instruct the jury on plaintiffs requested instruction one. “THE COURT: Let me see it. “I think in a general way it was covered. “[Counsel]: And number two, I would object. “THE COURT: I think the same thing. “[Counsel]: Objection to proposed instruction three. “THE COURT: I think the instructions cover it. “[Counsel]: And number four. “THE COURT: Same ruling. “[Counsel]: And three. “THE COURT: Same ruling. “[Counsel]: Six. “THE COURT: All right. I will give six. ²⁸⁷ “[Counsel]: And ten, unavoidable [sic] consequences. “THE COURT: I don’t think it is applicable to this one. I will give six.” (emphasis added).

The refusal to grant the italicized instruction gives rise to the issue now before us. Without reaching the contention that the trial court had erred in failing to grant the disputed prayer, the Court of Special Appeals held that the point had not been properly preserved for appellate review under sections d and e of Rule 554, “because appellants [had] not distinctly state[d] the grounds of their objection, designating the particular portion of the instructions given, or omitted, or objected to before the jury retired.” 1 Thus, held the court, the issue was controlled by Belt’s Wharf v. Internat. Corp., 213 Md. 585, 591-92 , 132 A. 2d 588 (1957), in which this Court rejected a contention similar to that advanced here, under the precursor to Rule 554 d and e. 2 There we had said: “We think the reference to the instruction by number, without a statement of the specific grounds of objection distinctly stated at the time exception is taken, is not a compliance with the rules and that ²⁸⁸ appellant’s contentions on this point may not be reviewed.” 213 Md. at 592 . As an alternative contention to their argument that the alleged error in the trial court’s instructions was properly preserved for appellate review even under Belt’s Wharf , appellants urge that we now overrule that precedent.

The holding of Belt’s Wharf been consistently applied by this Court in subsequent cases. See, e.g., Jones v. Federal Paper Bd. Co., 252 Md. 475, 490-91 , 250 A. 2d 653 (1969); Bauman v. Woodfield, 244 Md. 207, 222 , 223 A. 2d 364 (1966); Shafer v. Bull, 233 Md. 68, 75 , 194 A. 2d 788 (1963); see also Podolski v. Sibley, 12 Md. App. 642, 644-45 , 280 A. 2d 294 (1970). In each of these cases the exception taken consisted of nothing more than the number of a prayer previously submitted to the court.

A bald reference to the written prayer by number, therefore, was held in each instance to be insufficient