Simmons v. Haas

Bowie, J., prepared the following opinion in his lifetime, and the same being concurred in after his decease by the Judges who participated in the hearing, it was filed as the opinion of the'Court: • The suit, which is the subject of the present appeal, was instituted hy the appellee and his co-partner, William Eagely, trading under the name of John Haas & Co., against the appellant, Joseph M. Simmons, and his co-partners, Robert Gr. Rieman and Alfred Poor, trading under the name and firm of J. M. Simmons & Co., in the Superior Court of Baltimore City, on the 27th of June, 1870. The declaration filed on the same day contained only the common counts with an account annexed of the articles sold and delivered, and moneys paid, running from September 3rd, 1868, to November 30th, inclusive, aggregating in the whole the sum of $2192.68. ¹⁵⁹ The defendants appeared on the 5th of September, 1870, and pleaded several pleas, viz., 1st, that they never were indebtéd as alleged. 2nd, satisfaction and payment. 3rd, special damages, by reason of the non-performance of the plaintiffs' contract to deliver coal, etc. The cause was continued from May Term, 1870, to January Term, 1878. On the 13th of February, 1878, issues were joined on the first and second pleas, and replications filed to the third.

The death of Eobert Gr. Eieman and Alfred Poor, co-defendants, were suggested, and Margaret Gr. Eieman and Charles J. M. Gwinn, administrators of the former, and Marion FT. Poor, administratrix of the latter appeared and filed pleas in abatement, to which the plaintiffs replied, and defendants demurred to the replications, which demurrer the Court sustained.

On the 30th of September, 1879, the third plea of defendant was withdrawn, issues were joined on the first and second. On the 3rd of October, 1879, the death of Fagely, one of the co-plaintiffs, was suggested. By which successive deaths, suggestions and proceeding sthe parties were reduced to the present appellant and appellee. The judgment of the Court below on the demurrer being against the appellee, and no appeal >on his part, there is no question before us on that branch of the case.

The defendant, at the trial, took six bills of exceptions ; five from rulings as to the evidence, and the sixth from instructions granted or refused. The plaintiffs living and transacting business as coal merchants at Sunbury, Pa., and the defendants as dealers in coal at Havre de Grace, Maryland, the appellee to establish his account offered in evidence (the signatures thereto being admitted,) certain letters of the appellant, of the dates of September the 5th and 12th, 1868, respectively. The first seems to be in answer to a former letter relating to other and preceding dealings ¹⁶⁰ between the appellant and appellee in coal. The last sentence, contained these words: “Ship us 4 loads egg, and 4 loads stove, soon as possible, at your lowest price.” The letter of the 12th of September, 1868, addressed to the appellant was as follows: “ Gents : — You may fill our order of the 5th inst.

We will not order any more at present; you must put it at the lowest going price.” The appellee further proved that they had shipped coal and paid advances thereon, in fulfillment of the orders contained in the letters according to the bill of items which was offered in evidence; that four boat loads of coal were shipped from Sunbury, Pa., by the appellee to the appellant in September, 1868, and two boat loads in November, 1868, as appears by the bill of items; that there had been previous dealings between them, and the appellee'had advanced the freight, etc. Upon cross-examination of the plaintiff’s witness, the defendant proved that the first two shipments of coal by the appellee in September were on an August order from appellant, and not on the order contained in their letter' of September 5th, 1868 ; that in August the appellee sold coal at $2.25 per ton, and that coal advanced in price in September, about forty cents per ton. The appellant then offered in evidence the reply of the appellee, dated September 7th, 1868, to the letter of the appellant of September 5th, 1868. To the admission of which the plaintiff objected. The Court below held that the same was admissible only for the purpose of showing the acceptance by the appellee of the order of September 5th, 1868, and was not admissible on any ground for the purpose of recoupment, to which ruling the defendant excepted.

This letter although described in the bill of exceptions as a reply to the appellee’s letter of September 5th, contains no direct reference to that of the 5th of September, except in its last paragraph, which is in these words : “ Will ship ¹⁶¹ you the coal ordered in yours of the 5th.” The initial sentence, “ yours came, remarks noted,” is indefinite and may refer to any preceding letter. Then follows, “ In yours of the 7th, you wished to know what we would be willing to take for five hundred or a thousand tons of •egg and stove coal ';” all that follows until the last sentence accepting the order of the 5th of September, is an ■answer to a letter of the 7th of September, from the appellees’ firm which had not been offered in evidence by the appellees or the appellant. Letters of the adverse party are admitted in evidence against those writing them, as admissions against their interest, under the condition that they refer to the matter in controversy, and the whole admission is to be taken together. The text-writers on Evidence, and the decided ■cases, are not entirely in harmony as to the necessity of producing the prior letters, to which those offered in evidence purport to be answers, to make the latter admissible.

Taylor says, “ In regard to letters, it has been held that a party may put in such as were written by his opponent, without producing those to which they were answers, or calling for their production; because, in such case the letters to which those put in were answers, are in the adversary’s hands, and he may produce them if he thinks, them necessary to explain the transaction,” for which he refers to Lord Barrymore vs. Taylor, 1 Esp., 326, per Lord Kenyon; De Medina vs. Owen, 3 C. & Kir., 72, per Parke, B. On the other hand, it was decided in the case of Watson vs. Moore, 1 Carrington dc Kir., 626, that where one party produces the letter of another purporting to be in reply to a previous letter from himself, he is bound to call for and put in the letter to which it was an answer, as part of his own evidence. 1 Greenleaf’s Ev., sec. 201, note 1. ¹⁶² However ingenious and plausible the reason assigned in the English authorities, it seems to us, the general principle adopted by the American authors on Evidence, that the whole admission must be taken-together, generally requires the prior letter to he produced or accounted for before the answer can he properly admitted in evidence; though we do not decide it to be always the rule, and without exception, for the character of the letter and the case may make the production of the first unnecessary. The rule in chancery that a party against whom an answer is produced, may claim to have the whole bill, as well as the answer, read as part of his adversary’s case, upon ■the same ground that where one proves answers in conversation against a party, he may insist upon having the question to which he made the replies put in evidence, is, we think, a forcible illustration and correct applica- , tion of the principle. Vide Greenleaf’s JEv., sec. 201, note 1, and authorities there cited. Independently of this ohjection, (which does not seem to have been urged below,) the letter of the 7th of Seprtember, 1868, except its introductory and final paragraphs, referred entirely and exclusively to other contracts for coal, of which the items of account in controversy form no part, and the offers contained in it were positively declined hy the appellant’s letter of the 12th of September, 1868, saying, “ You may fill our order of the 5th inst.

We will not order anymore at present; you must put it at the lowest going price.” “4 loads egg; 4 loads stove.” It is argued by the appellant that this letter of the 7th, per se, furnished evidence to sustain his claim of recoupment, but it is not perceived what foundation such an indefinite offer, would furnish of damages sustained by the alleged non-compliance with the contract of the 5th of September. No time is stipulated within which the proposed contract was to be executed, and therefore proved ¹⁶³ nothing as to ability to perform, or the market value of the article. To interpose a proposition of this vague character, between the lines of a clear, concise and definite contract, would inevitably have involved the jury in inextricable doubt and confusion. In the further progress of the trial, the appellant offered in evidence a letter from his firm, dated the 15th of September, 1868, to the appellee, and the answer thereto, dated the 17th of September, 1868; in the first of which the appellant advised the appellee, “You may make our order for 1000 tons, at prices for 8 loads, fixed at $3.25, in yours of 7th and 8th inst., which you promise and engage to ship us 4 loads egg and 4 loads of stove at-.

"We want you to get them off fast as possible to which the appellee in their answer of the 17th, 1868, replied, “ We have accepted your order, and could ship you one cargo per day had we the boats, hut the boats are hard to be had. Can you not give boatmen orders to come to us ? By so doing you will oblige.” The appellant also offered in evidence a letter dated October 7th, 1868, from their firm to appellee, urging the latter to ship “ all the coal you owe us, as we must have it for shipment; we sold it all, and parties are urging us to ship it,” etc., and the answer thereto of the 14th of October, 1868, regretting that they were not able to ship as much that month as in the preceding. Without incumbering this opinion with a detail of further testimony on this point, we think it sufficiently appears from the record there was ample testimony admitted without objection, to enable the defendants to sustain their defence of recoupment, if it was not counteracted or overcome by other testimony submitted by the plaintiffs, and the instructions granted by the Court at the appellant’s instance gave him the full benefit of such testimony, if the jury should so find ; and we do not see that any substantial injury has been