Western Maryland Railroad v. Orendorff

Bartol, C. J., delivered the opinion of the Court. This appeal comes before us on four bills, of exceptions taken by the defendant below, and presents only questions of evidence. The suit is an action of assumpsit instituted by the appellee. The “narr.” contains the common counts; a bill of particulars was filed, showing a claim for work done in the construction of the railroad of the appellant, on section 25.

After the testimony of the appellee had been given in support of his action, as set out in the first bill of exceptions, the appellant (first having proved the signatures thereto,) offered to read to the jury a certain paper, purporting to be Articles of agreement between Michael Barry and Richard Malone, (under the firm of Dougherty, Barry & Co.) party of the first part, and the appellee, party of the second part, containing a contract on the part of the latter to perform the work of constructing and finishing “section No. 25” of the Western Maryland Railroad. The paper contains specifications of the work, the prices, and the times of payment for the same, by the party of the first part; with stipulations for the measurement of the same to be made by the Engineer in charge of the work. The paper is dated the 26th day of June, 1867, and is signed and sealed by the appellee only. Neither Barry nor Malone, the other parties named in the articles, signed or sealed the same; the places intended for their signatures being blank, with only the word seal written upon them.

On the back of the paper are the following endorsements, duly stamped: “For value received, we hereby assign and set over to the Western Maryland Railroad Company, our interest in the within contract. ³³³ “Witness our hands and seals, this first day of October, 1867. “ Michael Barry, [seal.] “Richard Malone, [seal.] “ Witness : Washington Dunn. “I hereby assent to the above assignment, and agree that the Western Maryland Railroad Company be subrogated to the rights of the parties of the first part to the said contract, and that the engineer of said company be substituted for the engineer of the parties of the first part. “ Witness my hand and seal, this first day of October, 1867. “David Orendoree, [seal.]” The Court below refused to allow the appellant to read this paper to the jury, and to this ruling the appellant took the first bill of exceptions. The same paper was then offered by the appellant in connection with a declaration which had been filed by the appellee in the same Court, in an action of covenant instituted by him against the appellant, wherein he had alleged that the appellant and himself had entered into an agreement and contract, and had filed therewith the same Articles of agreement, as the ground of his action. This testimony was offered to show an admission on the part of the appellee, that the terms set out in the said paper were the terms on which the work was done. But the Circut Court refused to allow the declaration and the paper to be read to the jury, stating that the appellee had abandoned his action in the previous case, because the Court was of opinion that he could not sue the appellant in covenant on the paper filed with his declaration.

To this ruling the second bill of exceptions was taken. ³³⁴ The appellant then offered to read the same paper to the jury in connection with proof that the same came from the custody of Barry and Malone to that of the appellant, and was accepted and acted under by Barry and Malone therein named; and by the appellant after the assignment to it, as the contract for section 25. To the refusal of the Court to allow the paper to