Soper v. Jones

Irving, J., delivered the opinion of the Court. The question intended to be presented by the bill of exceptions, contained in the record of this cause, cannot ⁵⁰⁸ be considered, because the bill of exceptions was not signed until after tbe term at which trial was had, was fully ended, and another term of the Circuit Court for Howard County, where it was tried, had intervened. The Judges of that Court, by virtue of the power conferred by the twenty-first section of Article four of the Constitution of 1867, by rule of Court, dated the 18th of March, 1868, fixed the terms of the several Courts in the several counties of their circuit. This rule, which was subscribed by the several J udges, has been certified to us in the record by the clerk of the Circuit Court for Howard County, under the' seal of that Court.

It is true it appears in the record as having been put there at the request of the counsel of the appellee; but if we were to order testimony on the behalf of the appellee, in support of his motion, to which he would be entitled, the only proof we would get would be a certified copy of the rule subscribed by the J udges, which, properly certified, we already have. It is useless to go through this form to secure what we already have in the precise shape necessary to establish what are the terms of the Circuit Court for Howard County. According to the record, the case was tried and verdict was rendered at the September Term, 1880, of that Court, and on the tenth day of September. The exceptions were not signed till the nineteenth day of January following, (1881,) long after the December Term of the Court had begun. .

There was no consent of counsel nor order of Court providing for the delay. It has been fully settled by this Court that such exceptions came too late. Wheeler & Briscoe, 44 Md., 312 ; Hooker vs. Sawyer, p. 468, ante. This appeal does, however, bring up for review the propriety of the Court’s action in overruling the motion made by the appellants for the arrest of the judgment; appellants’ counsel contends, that the judgment ought to have been arrested for two reasons, viz., 1.

Because, as ⁵⁰⁹ he insists, the first count in the declaration is substantially a count in trover, the second and third in contract, and the fourth a count in tort, and therefore a misjoinder. 2. Because no replication was filed to the appellants’ plea of tender. Erom the record it appears, that the case grows out of an alleged breach of contract on the part of the appellants, who were defendants below, with the appellee, who was plaintiff. The appellee alleged, that the appellants, who were auctioneers, contracted to sell for the appellee, certain wines and liquors at specified prices, or for an advance on the prices named, hut not to sell for less than the price named; and that in violation of the contract, (which was verbal,) they sold the same for a much smaller sum than that which had been agreed upon.

All the counts in the narr., as we construe them, and as we think, according to our rules of pleading, which only require a plain statement of the cause of action, are upon ■this contract; and we do not think that by fair construction, the fourth count in the narr. can be regarded as a count in tort. There is an interjection of some unnecessary verbiage, which may be rejected without affecting the count in any way; but looking to the cause of action, which is really stated in the count, it is clear, that it is, and was intended to be, a count on the alleged contract between the parties. The words, “and contriving to injure and inflict a loss upon the plaintiff,” may he stricken from the. count and wholly disregarded as surplusage. In