Berg v. Plitt

• Decision Date: 22 May 1940
• Docket Number: 18,19.
• Citation: 13 A.2d 364,178 Md. 155
• Parties: BERG v. PLITT. SAME v. H. KLAFF & CO., Inc.
• Court: Maryland Court of Appeals

13 A.2d 364

178 Md. 155

BERG v. PLITT.

SAME v. H. KLAFF & CO., Inc.

Nos. 18, 19.

Court of Appeals of Maryland

May 22, 1940

Appeal from Baltimore City Court; Samuel K. Dennis, Judge.

On motion for reargument.

Motion overruled.

For former opinion, see 12 A.2d 609.

Daniel S. Sullivan, Jr., and Randolph Barton, Jr. both of Baltimore (Sidney B. Needle, of Baltimore, on the brief), for appellant.

Edward L. Ward, of Baltimore (Irvin Davison and Emanuel Gorfine, both of Baltimore, on the brief), for appellees.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN MITCHELL, and DELAPLAINE, JJ.

MEMORANDUM.

The appellant's motion for a reargument in this case is based upon the exclusion of a purported copy of a bill of sale alleged to have been tendered to the appellant by the trustee in bankruptcy. The opinion decides that the exclusion was proper because the copy was not authenticated. Appellant in the motion points out that while the fact was not referred to in the written or oral arguments on his behalf, nevertheless counsel stipulated at the trial that uncertified copies of relevant documents might be used in evidence. In view of that stipulation the objection to the admission of the copy because it was not certified disappears. Nevertheless, it is not apparent that the appellant was injured by its exclusion when offered. Later in the course of the trial appellant made an offer to prove certain facts and among others the Bill of Sale. The Court thereupon informed counsel for appellant that any objection by the appellee to the evidence included in the offer would be overruled. Notwithstanding that the appellant submitted no evidence tending to prove the facts in the offer. The fact that the Court stated that although he would overrule an objection to it he still thought the evidence inadmissible could not possibly remedy the failure of the appellant to prove the facts stated in the offer. Appellant was given an opportunity to complete the record and to avoid any injurious consequences of the erroneous exclusion of the copy of the bill of sale but declined to take advantage of the offer.

Moreover the United States District Court for the Middle District of Pennsylvania had vacated the sale and had ordered the Trustee to retain the deposit as liquidated damages. That order was necessarily based upon a finding that the Trustee had offered to deliver to Berg the goods which he had bought, and...