Zalis v. Walter

Marbury, J., delivered the opinion of the Court. This is a suit at law brought by the appellee against the appellant in the Circuit Court for Dorchester County, eventually moved to Somerset County, and there tried. After various preliminary proceedings, the case came to trial on the appellee’s amended declaration and the amended bill of particulars to which the appellant pleaded the general issue. The amended declaration contained the common counts and a special count to the effect that the appellee sold and delivered to the appellant a lot of sewing factory machines, etc., on or about the 15th day of February, 1939, at Cambridge in Dorchester County, Maryland, where the machines were at that time said property being of the value of $3,367.50, which the ¹²² appellant promised to pay to the appellee, but which he failed to pay.

The bill of particulars identifies these machines as those set forth in a written schedule under date of October 14, 1983, made by the appellant, itemizes the value of each machine, and gives the appellant credit for several sold in November, 1936, leaving the balance due the same as that claimed in the declaration. On this state oí the record, the case went to trial. A verdict was rendered for the appellee for $3,000, and from the judgment on this verdict the appellant comes here on appeal. The questions presented by this record are the correctness vel non of the rulings of the trial court both on evidence and on prayers.

The only prayers offered were three by the appellant, and all three were rejected by the court. The first was a demurrer prayer, the second a variance prayer, which, however, is bad as to form, and the third also a variance prayer, which states that there is no sufficient evidence tending to support the averment that the plaintiff sold and delivered to the defendant a lot of sewing machines, etc., on or about the 15th day of February, 1939, or tending to support the averment in the bill of particulars that the plaintiff sold to the defendant on February 15, 1939, the property set forth in a written schedule under date of October 14, 1933. An examination of the evidence shows that the appellee’s case was based upon an alleged agreement made by him with the appellant in 1924, by which the appellee put his machinery in a building of the appellant in Cambridge and went to work for the appellant on a salary and bonus arrangement. The understanding was that the machinery was to be kept in repair by the appellant, and whenever their- relations were severed, the appellant was either to return the machinery to the appellee in the same condition it was when put in his building, or to pay him for it at the then market price.

The appellee stopped working for the appellant on February 8th or 9th of 1939, and the sole testimony on which he relies to prove the agreement of February 15, 1939, is his own statement ¹²³ of a conversation he had with the appellant, apparently after he had severed his connection with him. The conversation, in his own words, is as follows: “Well, he had a little piece of shafting up there and a few pulleys that was supposed to be turned over to me. I said, ‘you haven’t got nothing here.’ He said well he thought the tables were at Greensboro. We went downstairs in the office.

I said, ‘Mr. Zalis, thinking this over, sooner than have any further disagreement or argument I will take $1,500 for my stuff. You have used for the last fourteen or fifteen years, and end it all here.’ ‘No,’ he says, ‘Couldn’t do that.’ We talked and talked and talked. Finally, he offered me a $1,000. The returning of the machines to me or putting them in repair, was never mentioned by either one of us.

When I quit Mr. Zalis, my machines that I didn’t sell were in the factory, but only a few of them were in operation. My machines could have been repaired and restored, but it would cost three or four times what they were worth when they were put there.” Later on in cross-examination, he said: “When Mr. Zalis came with another man to the plant in the early part of February, 1939, neither he nor I said anything about the machines.” The appellee in his answer to the appellants demand for a bill of particulars as to the common counts said that each of these counts was for the recovery of