Taylor v. Commissioners of Perryville

Boyd, C. J., delivered the opinion of the Court. The record in this case does not show that there was an c-ntry of final judgment before the appeal was taken, but as the Clerk of the lower Court has certified that it was merely an oversight of bis, which he has since corrected, with the authority of the Court, by entering the judgment as of the date the motion for the new trial was overruled, and as the attorneys have filed in this Court an agreement that the judgment so entered shall be considered as having been entered before the appeal was taken, we will so treat it. By that agreement the attorneys also waived the effect of the omission to file a replication and join issue on the plea of the statute of limitations, which the record does not show had been' done. We will, therefore, pass on the merits of the case regardless of those irregularities.

The prayer granted by the lower Court was unquestionably too general, and therefore technically defective. It was, ⁴¹⁴ “The Court instructs the Court, sitting as a jury, that under the pleadings and evidence in the case their verdict must be for the defendant.” When a case is tried before the Court, as much attention is sometimes not given to the form of a prayer as would have been if tried before a jury, especially one seeking to reach the end that this was intended to accomplish, but that sort of a prayer has been held to be bad a number of times by this Court, although we will only refer to 2 Poe, Sec. 297. As the real question in the case is, whether there was legally sufficient evidence to take the plaintiffs claim out of the statute of limitations, we will pass on that. The account of the plaintiff is for the most part made up of a number of small items which cover over twenty-five pages of the printed record.

The first item is, “June 4th, 1901. To bill rendered to date, $254.46.” And after that there are charges! running from August 20th, 1902, to July 14th, 1906, amounting in all, including the one of June 4th, 1901, to $1,801.86. There are also three items in April, 1910, amounting to $8.75. There is a credit of $150.00 on June 15th, 1905, and one of $100.00 July 5th, 1906, leaving a balance of $1,559.61, due on the last named dated, as stated in the account filed, which should have been one dollar more according to the figures given.

The account is for work and labor done and materials furnished by the plaintiff to the defendant. ' The plaintiff offered as evidence to remove the bar what is entitled “Financial Statement, Town of Perryville, Md.,” published in a newspaper at Elkton. It is addressed “To the Taxpayers and Citizens of the Town of Perryville, Md.,” signed by A. II. Owens, Secretary and Treasurer, and purports to give the receipts and payments. At the end of it there is an item as follows: “Due Orion Taylor, as near as we can find out, being unable to get bill, $1,000.00,” but the statement is dated June 26th, 1908, having been published July 11th of that year, and as the suit was not instituted ⁴¹⁵ until January 4th, 1915, it is clear that it can not affect the question of the removal of the bar of the statute of limitations.

When the plaintiff was on the stand he was asked as to a conversation between him and Mr. Campbell (the record says “Cameron” in some places, but “Campbell” was doubtless intended), who was one of the Commissioners of Perry-ville and also acted as Secretary. The testimony was admitted subject to¡ exceptions, and was subsequently stricken out on motion. That constitutes the first exception. The ruling is objected to because the motion was too general.

It ought to have stated the questions objected to more specifically, but it must have been thoroughly understood that it related to the conversation between the plaintiff and Air. Campbell which had been admitted subject to exception. There are only three questions and answers, and, especially as the case was being tried before the Court, there would seem to have been no room for misunderstanding as to what was intended to he, and what was, stricken out. It would he a dangerous practice to permit one of three or more Commissioners, Oouncilinen, or whatever their official titles may be, of a municipal corporation to bind the corporation by statements he might make in reference to claims against it, unless he was duly authorized to act for the municipality.

Mr. Campbell did not become one of the Commissioners until 1911, and he testified, when called by the plaintiff, that he knew nothing whatever about the account alleged by the plaintiff to he due, and he said that they never did “business singlehanded. We always had the others to do business.” The members of a municipal body “can not make a valid determination binding upon the corporation by their assent separately and individually expressed.” 2 Dillon on Munc. Cor. (5th Ed.), Sec. 501.

The Court was clearly right in striking out the evidence. The only possible ground for contending that the alleged indebtedness to the plaintiff was admitted or so acknowledged ⁴¹⁶ as to revive it, is a letter ivhich was in evidence and is as follows: “Perryville, Md., Jan’y 13th, 1913. “Mr. Orion Taylor, Aikin, Maryland. “Dear Sir: “I have been instructed by the Board of Town Commissioners as follows: As we have no account or record of any bill which the Town of Perryville owes Mr. O. Taylor, the secretary will on or before the 15th day of January, mail Mr. Taylor a request for to place an itemized bill of all work done and materials furnished which he claims the town owes him for; same to be in the hands of the Secretary on or before February 3rd, 1913, as any bill or claim for work done or material furnished previous to February 3rd, 1910, will not be recognized after Feby. 3rd, 1913.’ “Yours truly, “The Commissioners of Perryville, “George B. Campbell, Secretary.” The Commissioners were Messrs. Campbell, Rutter and Gorrell. Mr. Rutter did not testify, but Mr. Campbell did, and Mr. Gorrell testified that he did not become a Commissioner until 1912.

The evidence implies that neither of the three was a Commissioner until some time after 1910. There is enough in the record to show that the appellant was claiming that the town owed him a bill, and that the three Commissioners were trying to- ascertain the facts about it. They knew nothing themselves, but the plaintiff was endeavoring at the trial to prove some admissions, promises, or something that would take the claim out of the statute, and called Messrs. Campbell and Gorrell, two- of the Commissioners, to the stand.

All the evidence in the record was offered by the plaintiff, the prayer having been granted at the conclusion of his testimony. This appears in the testimony of Mr. Gorrell in reference to- the letter above quoted: “Q. Will ⁴¹⁷ you explain what you meant by this letter, or by this resolution which is contained in this, letter: ‘As we have no account or record of any bill which the town of Perryville owes Mr. Taylor/ etc. ? As a matter of fact, you didn’t have a record of a great many things, did you? A. We didn’t have any record pertaining to his accounts.

Q. Were your1 records faulty, not only as far as he was concerned, but in a great many other cases? Were the records imperfect, incomplete? A. What I mean, there was no regular meetings all along the line. Of course what records was there we couldn’t dispute, what records was on the books; but there was nothing that showed any record in regard to Mr. Taylor all along the line.Q. You knew that Mr. Taylor had a bill of some kind, didn’t you ?

A. All I knew was what he presented us. Q. Why did you write him this letter if you didn’t know he had a bill % A. I can tell you how the letter came about. Q. All right; go ahead ? A. Mr. Campbell was out at tbe station one time, and he heard Mr. Taylor talking about the Commissioners” * '* * The witness, continuing his answer, further states: “Mr. Cameron, when he heard he mentioned the Commissioners’ names, he stopped to hear what he was talking about, and he said that he said, ‘These other Commissioners in before this/ he said ‘he couldn’t get a d-cent out of them/' and he said