Adkins v. Hastings

• Decision Date: 05 May 1921
• Docket Number: 2.
• Citation: 114 A. 288,138 Md. 454
• Parties: ADKINS v. HASTINGS.
• Court: Maryland Court of Appeals

114 A. 288

138 Md. 454

ADKINS v. HASTINGS.

No. 2.

Court of Appeals of Maryland

May 5, 1921

Appeal from Circuit Court, Wicomico County; John R. Pattison, Joseph L. Bailey, and Robert F. Duer, Judges.

"To be officially reported."

Action by Levin Hastings, trading as Hastings & Co., against Thomas L. Adkins. From a judgment for plaintiff, defendant appeals. Affirmed.

The following are the prayers of the parties and the rulings thereon:

Plaintiff's Prayer.

The plaintiff prays the court to instruct the jury that, if they shall find that the goods, the price of which is sued for, in this case were sold and delivered by the plaintiff to the wife of the defendant upon his credit, with the knowledge consent, and authority of the defendant, and that during the course of dealings between the plaintiff and defendant's wife the goods were charged to the defendant, and the itemized bills sent to and received by him, and that he did not object thereto, and that the goods so purchased were necessaries consisting of food and clothing used in the family and by the wife and children and suitable for their station in life, and that the defendant, prior to the purchase of the goods the price of which is sued for in this case, went to the store of the plaintiff, and in the presence and hearing of the plaintiff, told the plaintiff's clerk and bookkeeper that he wanted them to let his wife have whatever goods she ordered, as he did not know what was needed in the family, and that, in pursuance of this general order and direction from the defendant to the plaintiff, the goods the price of which is sued for in this case were sold and delivered to the defendant's wife, then the defendant is legally responsible to the plaintiff for the price of the goods sold and delivered to his wife, and their verdict must be for the plaintiff for the value of the goods so sold and delivered.

Defendant's First Prayer.

The defendant prays the court to instruct the jury that under the pleadings in this case there is no legally sufficient evidence to entitle the plaintiff to recover.

Defendant's Second Prayer.

The defendant prays the court to instruct the jury that, if the jury shall find from the evidence in this case that the goods charged in the account upon which this suit is brought were sold and delivered by the plaintiff to the defendant's wife, and that the defendant did not authorize his wife to purchase any goods, or any of the goods charged to the defendant's account, and that the defendant did not authorize the plaintiff to charge the goods sold and delivered to him, then the plaintiff is not entitled to recover in this case unless he shall show by a preponderance of the evidence that the defendant refused and failed to support his wife or failed to make adequate provision for her procuring necessaries suitable to the station of life which she occupies, and that the goods charged in the account were necessaries and suitable to the station in life occupied by the defendant's wife.

Defendant's Third Prayer.

The defendant prays the court to instruct the jury that, if the jury find that the plaintiff is entitled to recover in this action, the amount of his recovery should be limited to the reasonable value of the goods, which value the plaintiff must prove.

And the court granted the plaintiff's prayer and refused the defendant's first, second, and third prayer, and to the action of the court in so granting the plaintiff's prayer and refusing the defendant's first, second, and third prayer the defendant excepted, and prays the court to sign this its fourth bill of exceptions, which is accordingly done this 2d day of November, 1920.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE ADKINS, and OFFUTT, JJ.

Thomas H. Lewis, Jr., of Salisbury, for appellant.

Jay Williams and Arthur E. Williams, both of Salisbury, for appellee.

ADKINS J.

A motion was filed to dismiss the appeal in this case-

"because the bills of exception were not prepared and submitted to the nisi prius court within 20 days from the rendition of the verdict in this case as provided by the rules of court for the first judicial circuit of Maryland and were not signed by the nisi prius court and filed by the appellant in this case within the time allowed by the special order made by the nisi prius court in this case, extending the time within which bills of exception could be filed."

The rule referred to requires that-

"The party taking the exception note the same at the time of the ruling made, and thereafter within a reasonable time after the trial reduce the exception to proper form in conformity to the rules presented by the Court of Appeals for the regulation of appeals, and submit the same to the judge or judges for his or their signature, provided, however, unless otherwise expressly allowed by this court, the bills of exception shall be prepared and submitted to this court within 20 days from the rendition of the verdict."

The verdict was rendered on September 14, 1920. On October 2, 1920, time for filing bills of exception was extended to the 1st day of November, 1920.

It appears by the affidavits of Thomas H. Lewis, Jr., attorney for appellant, and his stenographer, Ida Lee Taylor, the bills of exception were prepared and delivered at the office of Judge Bailey, one of the judges of said court, on the 1st day of November, 1920, and on the same day a copy of them was left with the attorneys of the appellees. This is not denied, and it appears from the record that the bills of exception were signed on the 2d day of November, 1920, but they do not appear to have been filed in the clerk's office until November 15, 1920. It is not apparent to us why the delivery of them to Judge Bailey on November 1, 1920, was not a sufficient compliance with the rule and the order of October 2d, as the requirement of the rule is submission of the bills of exception to the judge within the time provided, and not necessarily that they be filed in the clerk's office by that date; and the order of October 2d extending the time for filing until November 1st was in effect an extension of time for submission to the judge.

But, even if this were not so, it appears from the affidavit of Judge Bailey that on October 29, 1920, he signed another order extending the time for filing bills of exception to the 15th day of November, 1920, which order was with his consent left with him for filing, but through inadvertence on his part was not filed by him with the clerk of the court, but was retained by the judge in his chambers until the 2d day of February 1921, when by an order of that date it was filed by the clerk nunc pro tunc as of the 29th day of October, 1920. The motion of ne recipiatur as to the orders of October 29, 1920, and February 2, 1921, and the motion to dismiss the appeal, are overruled.

This appeal is from a judgment for $396.28 in favor of the appellee against the appellant on an open account for merchandise alleged to have been sold by appellee to the wife of appellant at his request.

There are four bills of exception. Three are exceptions to rulings of the trial court on evidence, and one on prayers.

The first exception is to permitting the clerk of appellee who kept the books of the business to read from the book, in which he testified he made the entries in the regular course of business at the times the sales were made items of the account. Before reading these items, the witness testified that a few of the goods charged were delivered to appellant himself, but the bulk of them to the wife, that the goods were all such as were ordinarily used in families in like circumstances with defendant, and that he had requested witness to give credit to his wife, as he did not know what the family needed.

The following questions and answers preceded the reading of the items:

"Q. How do you keep a record of these sales? A. Sometimes they were put down by items and sometimes in a whole.

Q. You mean you kept a book account of it? A. Yes, sir.

Q. Were those entries made by you at the time of sale? A. Yes, sir.

Q. Did you have the book? A. Yes, sir; there it is.

Q. Is this the book in which you made the entries? A. Yes, sir; that is the book.

Q. And these entries in the book were made by you in every instance when the sales were made? A. Yes, sir.

Q. You were present when the sales were made? A. I done it.

Q. You sold the goods yourself? A. Most of the time.

Q. Is this book you refer to the book you used in the regular course of your business? A. Yes, sir."

Now it will appear from the above that the witness either made the sales himself or was present when they were made, as he says he made most of the sales, and that all the entries were made by him at the times of sales, so that he must at least have been present. In these circumstances it is presumed that he knew the entries were correct at the time they were made, and the ruling of the court in permitting him to read the items from the book was in effect deciding that he could refresh his recollection by referring to the book. The law on this subject is too familiar to require the citation of authority. We find no error in this ruling.

In any event this exception is unimportant if the book itself was properly admitted in evidence, as was afterwards done over the objection of appellant. This is the ground for the second exception.

It is objected that the witness did not testify in so many words that the entries are correct and accurate, and that he made the entries in accordance with the truth of the matters as he knew them to exist at the time he made the entries, and...