Black v. Woodrow

• Decision Date: 16 January 1874
• Parties: WILLIAM W. BLACK v. J. FRANK WOODROW and LAKE RICHARDSON.
• Court: Maryland Court of Appeals

39 Md. 194

WILLIAM W. BLACK v. J. FRANK WOODROW and LAKE RICHARDSON.

Court of Appeals of Maryland

January 16, 1874

APPEAL from the Superior Court of Baltimore City.

The facts are stated in the opinion of the Court.

First Exception.--At the trial of the cause, the defendant, in pursuance of notice from the plaintiffs produced the original contract, made in May, 1869, for the building by the plaintiffs of a frame dwelling house for the defendant. This contract, it is not important to set out here. When produced, it had affixed to it a five cent U.S Internal Revenue stamp. The defendant objected to the admissibility of the contract, on the ground that it had not been stamped according to requirements of Acts of Congress offering to prove, unless plaintiffs admitted it, that the contract had been stamped by the plaintiffs without the knowledge or consent of the defendant, about the 11th of December, 1871, more than a year subsequent to its execution and when it had been produced, upon notice from the plaintiffs by the defendant, it was unstamped, but was then stamped by the plaintiffs, for the purpose of being used in a suit by said plaintiffs against said defendant for an alleged violation of said contract. The plaintiffs admitted that they had stamped it about the 11th of December, 1871, without the knowledge or consent of the defendant, but stated, as part of the admission, that a short time after the contract had been signed, it had been given to the defendant. At the time the contract was signed, they had no stamp and could not conveniently get one. The contract was delivered a short time afterwards, unstamped, by Woodrow to the defendant; and after the contract had been so delivered, the plaintiffs bought a 5 ct. U.S. stamp, and gave it to the defendant to put upon said contract. The contract remained from the time when it had been delivered to Black, in his possession, until its production in the Circuit Court for Cecil County, and it never had been stamped until stamped by the plaintiffs as aforesaid, in December, 1871, though the plaintiffs had no knowledge that their directions to stamp it had not been complied with.

These being the facts admitted, the Court overruled the objection for want of stamp, and allowed the contract to be read in evidence to the jury; to which ruling of the Court the defendant excepted.

Second Exception.--The defendant, to support the issue on his side, asked William W. Black, the defendant, who was called as a witness in his behalf:

1st. Were you present at a trial between the present plaintiffs and defendant in the Circuit Court for Cecil County, in December, 1871, upon this same cause of action?

Answer. I was.

2nd. Was a certain J. J. Heckart produced on the part of the defendant in that cause, and examined as a witness?

Answer. He was.

3rd. Is he living or dead?

Answer. He is dead.

The witness then stated that he was present at the former trial during the whole of the examination of Col. Heckart, and thinks he heard it all; can state substantially what he said as to the quality and condition of the lumber proposed to be used in the building, which was then on the wharf at Principio, but cannot state what he said substantially as to the different qualities of pine as grown in the different States of North Carolina and Georgia, as to which Col. Heckart gave evidence. The defendant then offered to examine said witness to prove what had been Col. Heckart's testimony about the condition of the lumber at Principio wharf.

The plaintiffs objected, because the witness offered could not recollect substantially the whole of Col. Heckart's testimony. The Court sustained the objection, and the defendant excepted.

Third Exception.--The plaintiffs offered evidence tending to maintain the issues on their part, and the defendant offered evidence tending to maintain the issues on his part. And there was evidence tending to prove all the facts hypothetically stated in the plaintiffs' third prayer.

The evidence being closed on both sides, the plaintiffs offered the following prayers, which were granted:

1. That if the jury believe from the evidence that the contract offered in evidence by the plaintiffs was signed by the plaintiffs and defendant, and that the plaintiffs were ready and willing on their part to fulfil said contract, and that the defendant refused to allow them to do so, or refused to allow plaintiffs to haul to the site of the building mentioned in said contract materials suitable for its erection; and further find that the plaintiffs have sustained damage thereby, then the plaintiffs are entitled to recover in this action for the actual loss and damage sustained by them in consequence of said refusal, less the amount of defendant's account in bar; provided said account in bar, as found by the jury, does not equal or exceed the amount of damages sustained by the plaintiffs.

2. That if the jury find the facts stated in the plaintiffs' first prayer, and that the plaintiffs expended their labor, time or money in endeavoring honestly and in good faith to carry out said contract, either for labor or materials suitable for the building referred to in the contract, or purchased or agreed to purchase materials suitable and proper for said building, and were obliged to sell them in consequence of the refusal of the defendant to allow them to fulfil said contract, and did resell them for the best price that could be reasonably obtained therefor, and at a less price than what they had agreed to pay for the same, that all these matters are proper for the consideration of the jury in estimating the damages of the plaintiffs, and they should make a reasonable allowance therefor.

3 That if the jury believe from the evidence that the term "North Carolina yellow pine flooring" is used in the lumber trade to designate certain kind of hard yellow pine flooring, and it is not confined exclusively to the growth of the State of North Carolina, but also includes the same general character of flooring grown in the adjacent States of South Carolina and Georgia, then the plaintiffs had a right, under the contract offered in evidence by them, (if the jury find that said contract was signed by the plaintiffs and defendant,) to use in defendant's house yellow pine flooring grown in the State of Georgia, if first-class yellow pine flooring, and of the same general character, and equal or superior in quality to first-class yellow pine flooring grown in the State of North Carolina.

4. If the jury believe from the evidence that the contract referred to in the evidence was signed by plaintiffs and defendant, and the plaintiffs were ready and willing and offered on their part to perform the same, and that they made a sub-contract with a certain Amos Treadway to dig the cellar and build the cellar walls in accordance with said contract, and that said Treadway commenced said work and partly performed the same, even if not in exact accordance with said contract, and that said work so done had not been finished or accepted by the plaintiffs, that then these facts do not authorize the defendant to rescind the said contract; provided the jury find the plaintiffs could have altered or reconstructed said cellar walls, and finished the building within the time mentioned in said contract, and in accordance therewith, and did not refuse to do so.

And the defendant offered the following prayers:

1. It being admitted that the written contract upon which suit is brought in this case, and which contract has been read in evidence to the jury, notwithstanding the objection of the defendant--was unstamped with a United States Internal Revenue Stamp at the time the contract was made, and so remained unstamped up to the 11th day of December, A. D., 1871, when suit was brought upon it in the Circuit Court for Cecil County, against the present defendant by the present plaintiffs, and was at the said trial then and there stamped by the plaintiffs, without the consent of the defendant, the jury have no right to consider such contract or give any damages for the alleged violation of it.

2. It being admitted that the contract sued on in this case, and which is in writing, was made in June, 1869, and was not stamped in accordance with the Act of Congress upon that subject, but was only stamped long afterwards, to wit, on the 11th day of December, 1871, for the purpose of being used in a suit which had been brought upon it by plaintiffs, and was then stamped without the consent of the defendant, the said contract is utterly null and void.

3. If the jury believe the plaintiffs made with the defendant a contract to build for him a house upon his farm in accordance with the terms and stipulations of a written agreement offered in evidence, that then, before they can find a verdict in favor of the plaintiffs for a violation of said contract by the defendant, they must first be satisfied from the evidence in the cause that the plaintiffs were ready and willing, and offered to make the lower floors of said house, including porches, of first-class North Carolina yellow pine.

4. If the jury believe that plaintiffs and defendant made a contract for the building by plaintiffs of a house for defendant, and that said house has not been built, nor the contract abandoned by the mutual consent of both parties, nor the plaintiffs prevented from building the house according to the terms and specifications agreed on between them, that then the plaintiffs can recover nothing upon any of the counts of the declaration filed in this cause, and the verdict must be for the defendant.

5. If the jury find that defendant employed plaintiffs to build for him a first-class house upon his farm in Cecil County in a workmanlike manner, and...