Adams' Exp. Co. v. Trego

• Decision Date: 12 January 1872
• Citation: 35 Md. 47
• Parties: THE ADAMS' EXPRESS COMPANY v. WILLIAM H. TREGO.
• Court: Maryland Court of Appeals

35 Md. 47

THE ADAMS' EXPRESS COMPANY v. WILLIAM H. TREGO.

Court of Appeals of Maryland

Jan. 12, 1872

APPEAL from the Circuit Court for Baltimore County.

First Exception--At the trial of this cause, the plaintiff proved by his own testimony that he had been employed since 1852 until 30th June 1869, as assistant superintendent by the defendant, through Samuel M. Shoemaker the superintendent or general agent of the defendant for the division or district, consisting of Maryland, District of Columbia and a part of Virginia; that he was employed by the year, from January to January, and in 1867 his salary was $4000, and so continued until the close of his service; that on the 28th of June, 1869 Mr. Shoemaker showed him a letter and informed him that his services would not be required after the 30th instant, but gave no reason therefor; an explanation was asked, but none was given.

The plaintiff then offered in evidence his declaration to said Shoemaker on the 30th of June 1869, after he had been notified of his dismissal from the service of the company that he intended to hold the company responsible for his year's salary. To the admission of this declaration as evidence, the defendant objected, but the Court (YELLOTT, J.) overruled the objection and allowed the evidence to go to the jury; to this ruling of the Court, the defendant excepted.

Second Exception--The plaintiff having given in evidence the testimony set forth in the previous exception testified on cross examination that at the time of his dismissal, and from November 1868, he had, with S. H. Geegan and P. S. McLaughlin been interested, as the Philadelphia, Wilmington and Baltimore Transfer Company, in conveying freight from the President Street Station to consignees in Baltimore.

The plaintiff then offered to prove by his own testimony that Mr. Shoemaker knew of this transaction, and approved of the same, saying it was better to have a friend in it than a stranger.

To the admission of this testimony, the defendant objected, but the Court overruled the objection and allowed the testimony to go to the jury; to this ruling the defendant excepted.

Third Exception--The plaintiff, after giving in evidence the testimony set forth in the previous bills of exception, proved by his own testimony that about the 1st of October, 1868, he was approached by the agent of the P. W. & B. R. R. Co., to deliver freight in Baltimore to consignees; that he went to Mr. Shoemaker and told him of the proposition, and informed him that he would do nothing to injure the Express Company, and asked him whether in his judgment this business would interfere with the company. Mr. Shoemaker took a week to consider, and at its close told me "he could see no objections to it," and if I could make any money in it, I had better do it, as it was better to have a friend than a stranger in it.

To this testimony the defendant objected; but the Court overruled the objection, and allowed the evidence to go to the jury; to this ruling of the Court the defendant excepted.

Fourth Exception--The plaintiff, after offering in evidence the testimony set forth in the previous bills of exception asked leave of the Court to amend his declaration, and leave being granted by the Court, the plaintiff filed an amended declaration, which in addition to the common counts, contained a special count setting forth a special agreement, and his willingness to perform his part thereof, but charging a wrongful dismissal by the defendant, six months before the expiration of his term of employment under the contract.

Whereupon the defendant moved the Court to grant it a continuance to enable it to plead to the new and amended declaration, and insisted that under the following rule of the Court, it was entitled to time until the second rule day thereafter:

"13th. When any rule to plead shall be laid on a rule day, the time for complying therewith shall be on or before the first succeeding rule day; and if such rule be entered on some other day than a rule day, the party upon which the same is laid shall comply therewith, on or before the second rule day thereafter."

The defendant further insisted that by the following rule, the first rule day thereafter was the first day of March next, and the second rule day the first day of April following:

"10th. The first day of every month shall henceforward be the rule days; but if the first day of any month shall happen to fall on Sunday, or to be the first day of a term, the Saturday next preceding the same shall be the rule day, instead thereof. But if the party filing any pleading shall serve a written copy of the same upon the opposite party, or his attorney, the party so served shall be required to plead within fifteen days after the service of such copy."

The Court refused to grant the continuance, and laid a rule upon the defendant to plead to the amended nar. forthwith; to the refusal to grant the continuance, and to the order requiring the defendant to plead forthwith, the defendant excepted.

Fifth Exception--After the order of the Court directing the defendant to plead to the amended declaration, and after all the evidence had been given to the jury, as set forth in the defendant's previous bills of exception, the defendant filed a petition praying the Court to remove the cause into the United States Circuit Court for the Maryland District, according to the acts of Congress, in such case provided; upon the ground that from prejudice and local influence, the defendant would not be able to obtain justice in the Court where the cause was then pending.

The Court overruled the prayer of the petition and refused to remove the suit; to this action of the Court the defendant excepted.

Sixth Exception--The evidence upon which the theory of the following prayers is based, is sufficiently set out in the first, second and third exceptions and in the opinion of this Court. The plaintiff asked the following instructions:

1. If the jury believe from the evidence in the cause, that the defendant employed the plaintiff as assistant superintendent for the year, commencing January 1st, 1869, and ending December 31st, 1869, and that a few days prior to the 1st of July, 1869, the defendant discharged the plaintiff from its employment; and further find, that at the time said contract of employment was made and entered upon, the plaintiff was with the consent and knowledge of the defendant engaged in another business of indefinite duration as a member of the firm of Geegan & Co., agent for the Philadelphia, Wilmington and Baltimore Railroad Company, to deliver freight from President Street Depot, Baltimore, Md., to consignees in Baltimore, and that said business continued in every particular to be the same up to and at the time of the plaintiff's discharge; then the mere continuance of said business as a member of the firm of Geegan & Co., was not a sufficient cause for his dismissal, provided they find that the plaintiff faithfully and efficiently discharged all his duties as assistant superintendent to the defendant.

2. If the jury find that Samuel M. Shoemaker, was the superintendent or general agent of the defendant, for the division, consisting of Maryland, District of Columbia, and a portion of Virginia, with full authority to employ and discharge employés and agents, and direct their conduct, make contracts and exercise a general supervision over the defendant's business; and further find, that the said Shoemaker, as such superintendent or general agent, employed the plaintiff, then the jury may find that in regard to all matters and things pertaining to or affecting said contract of employment the knowledge and consent of said superintendent or general agent was the knowledge and consent of the defendant.

The defendant then offered the following prayers:

1. That if the jury find from the evidence in the cause, that the plaintiff was employed by the defendant as assistant superintendent on or about the first day of June, A. D., 1869, for one year, at a salary of $4,000 per year, payable monthly, and that prior to the expiration of the said year, the plaintiff was discharged by the defendant, and his salary paid to the end of the month, during which he was so discharged, yet that the jury cannot find a verdict for the plaintiff unless they shall further find that such discharge was wrongful and without cause.

2. That if the jury shall find from the evidence in the cause, that the defendant contracted with the plaintiff to employ him as assistant superintendent of this District, from January 1st, 1869, to January 1st, 1870, at a salary of $4,000 a year, payable monthly, and that the plaintiff engaged to serve the defendant efficiently and in good faith as such assistant superintendent in the district, consisting of Maryland, District of Columbia, and part of Virginia and West Virginia, and if the jury shall find from the evidence, that he became a partner with others in the Philadelphia, Wilmington and Baltimore Transfer Company, and undertook to carry freight and packages from the President Street Station, and to deliver the same to consignees in Baltimore in violation of his duties to, and injuriously to the interest of the defendant, then the defendant had a right to determine its contract with him, and if the jury shall find it did so terminate its contract with the plaintiff on the 30th day of June, 1869, and paid the plaintiff the month's salary due him on the 30th of June, 1869, then the plaintiff is not entitled to recover.

[The plaintiff excepted specially to the foregoing second prayer because it assumed as a fact that the business of the plaintiff as a member of the firm of Geegan & Co. was in violation of his duty to the defendant and injuriously...