Borden Min. Co. v. Barry

• Decision Date: 29 October 1861
• Citation: 17 Md. 419
• Parties: THE BORDEN MINING COMPANY v. JOHN BARRY.
• Court: Maryland Court of Appeals

17 Md. 419

THE BORDEN MINING COMPANY v. JOHN BARRY.

Court of Appeals of Maryland.

October 29, 1861

Upon appeal from a judgment of a justice of the peace, the cause is taken up de novo in the circuit court, and disposed of in the same manner as if no judgment had been rendered.

On such an appeal, the plaintiff may abandon his suit, or suffer non pros. as in an original action, and the court has full authority to reverse the judgment without prejudice, which leaves the plaintiff in statu quo.

The fact that the circuit court, on appeal from a judgment of a justice against the defendant, entered, on motion of the plaintiff, against the remonstrance of the defendant, the judgment reversed without prejudice, is no bar to another suit by the plaintiff on the same cause of action.

In an action for breach of a contract to employ the plaintiff's boat to carry coal on the canal during the boating season of 1859, the defendant offered evidence that the canal company allowed a greater depth of water in the canal during the season of 1859, so that the plaintiff's boat could and did carry from nine to ten tons more per load than it had been able to carry in previous seasons. HELD:

That this evidence was irrelevant; it could not diminish the damages claimed by the plaintiff, nor inure in any way to the benefit of the defendant; on the contrary, if it could have any effect, it would be to increase the damages.

Declarations of the defendant's agent, not made in the presence of either the plaintiff or his witness, who was sought to be impeached, could not affect the rights of the plaintiff, nor tend to contradict or disprove the testimony of his witness and were therefore irrelevant.

After defendant's failure to freight and employ plaintiff's boat, according to contract, it was plaintiff's duty, in law, to use all reasonable and proper exertions in the use and disposition of his boat, stock, and hands, to save himself from loss, or render the same as light as possible but he was not bound to keep his boat and horses unemployed and to dismiss his hands.

The declaration stated, that in consideration that the plaintiff would run his canal-boat in defendant's line of boats, in freighting coal for it, it, the defendant, promised to employ the boat during the entire season, and pay the plaintiff freight at the rate of $1.15 per ton:--breach, that the defendant wholly neglected to load and unload the boat. The proof showed that the rate of freight was $1.15 per ton, or current rates, and that the current rates were, in fact, $1.15 per ton. HELD:

1st. It was not necessary, for the maintenance of this action, to set out in the narr. the rate of freight agreed to be paid, the suit not being for freight earned, but for a breach of the contract, in failing to load and unload the boat.

2nd. That part of the contract which constituted the ground or gravamen of the action, is properly stated, as also the consideration for the defendant's promise, and this is all that the rules of pleading require.

3rd. Even if it be conceded that the plaintiff having undertaken to set out the rate of freight, which he need not have done he must allege it as proved, and that a material variance would be fatal, still there is no substantial variance in this case.

4th. The rule of pleading is, that a contract must be stated according to its legal operation, and if the evidence proves it according to that legal operation, it is sufficient.

APPEAL from the Circuit Court for Allegany county.

Action, brought on the 3rd of October 1859, by the appellee against the appellant.

The first, second, third and fourth counts of the declaration set out a special contract, that in consideration that the plaintiff would run his canal-boat in the defendant's line of boats, in freighting and carrying coal for it, on the Chesapeake and Ohio Canal, from Cumberland to Alexandria, during the whole boating season, for the year 1859, the defendant promised to employ the boat during the entire season, and to pay the plaintiff freight at the rate of one dollar and fifteen cents per ton:-- breach, that the defendant wholly neglected and refused to load and unload the boat, and improperly discharged it before the boating season was over. To these counts the defendant pleaded, 1st, that it did not promise as alleged, and 2nd, a prior suit for the same cause of action before a justice of the peace, and the judgment of the justice, the appeal therefrom to the circuit court, and the proceedings thereon in that court, which are fully stated in the opinion of this court. The plaintiff joined issue upon the first plea, and demurred to the second, which demurrer was sustained by the court. The case was then tried upon the other issues, in the course of which three exceptions were taken by the defendant to the rulings of the court below, (PERRY, J.,) all of which are sufficiently stated in the opinion of this court. The verdict and judgment were in favor of the plaintiffs for $414.50 damages, and costs, and the defendant appealed.

The cause was argued before LE GRAND, C. J., TUCK, BARTOL and GOLDSBOROUGH, J.

Geo. A. Pearre, for the appellant:

1st. The second plea to the special counts in the narr. was a good defence to the action. The entry of nolle prosequi on the appeal in the circuit court, amounts to nothing more than a reversal of the judgment, and is a bar to another suit for the same cause. 8 B. Munroe, 225, Harris vs. Tiffany & Co. 2 Wood. & Minot, 531, Folger vs. The Robert G. Shaw. The case was tried before the magistrate on the merits, judgment given against the company, from which it appealed, upon which appeal it had a right to have a re-hearing of the case. The appeal did not vacate the judgment. The judgment stands until reversed. Upon the appeal of the company, it was the duty of the court " to hear the allegations and proofs of both parties, and determine upon the same according to the law of the land, and the equity and right of the matter. And inasmuch as the appellee could not rightfully abandon his case, and acquire a right to bring another action, this court will give to the proceedings of the circuit court, upon the appeal from the magistrate, the legal effect which the facts stated in the plea ordain for it. It is not necessary, in a plea of former judgment, to say it is unreversed. 1 Saund. Rep., 330, note 4. A prima facie answer to the narr. is stated in the plea, and that is sufficient. 1 Chitty's Pl., 222. It is not even necessary to plead a former recovery, but it may be admitted in evidence. 4 G. & J., 360, Shafer vs. Stonebraker. 12 Md. Rep., 566, Beall vs. Pearre. In the case of Richardson vs. Parsons, 1 H. & J., 253, the judgment was reversed, and the verdict set aside, for error in fact, and it was not evidence because reversed on that ground: the same would have been the result if reversed on any ground. In Wood vs. Jackson, 8 Wend., 36, the verdict urged as an estoppel had been set aside upon the reversal of the judgment in the court of errors. But here there was no need to state the judgment was not reversed, because the court which gave the judgment relied on, was itself an appellate court. The argument on the other side, and the demurrer, suppose I am relying on the judgment of the justice, whereas I am relying on the judgment of reversal: I plead the facts, and rely on the legal effect of those facts. The plaintiff had no right to non pros. the case; he could not enter non pros. alone, as in cases where a party may non pros. 8 Md. Rep., 50, Frazier vs. Griffie. Reversal must be entered. The case was not gone into and the judgment reversed because of some technicality, or reversed upon something not involving the merits. The plea shows specially how it was done, and negatives all idea that the judgment was reversed upon matter of form merely. Suppose a party has judgment against him in the circuit court, and appeals, can the appellee come up here and enter judgment reversed? The circuit court is an appellate court in such cases, both as to law and facts; this court is such as to law. The case is not commenced afresh in the circuit court; the trial is gone over. The appeal does not destroy the judgment, unless it stands reversed; if no bond is given on appeal, the judgment may be collected. Non pros. is a proceeding which terminates an action before and without trial. Ev. Pr., 262. The case of Brintnall vs. Foster, 7 Wend., 103, only decides that the justice could render the judgment of non suit, and that parol evidence was not admissible to contradict the record. But I say in this case the court could not permit a non pros. A voluntary reversal it could permit; the judgment of reversal is entered; that bars; all else is a nullity, except to show the appellee's consent. We do not inquire into the propriety of the judgment, but its legal effect. The plea states how the judgment of reversal, without prejudice was entered, and this negatives the idea that it was for want of form. It was entered upon the non pros. at the request of the plaintiff. The terms " reversed without prejudice," amount, therefore, to nothing more than a simple reversal. The plea is so special that it shows, affirmatively, the proceedings were regular.

2nd. The evidence in the first exception was admissible in mitigation or reduction of damages. The greater quantity of coal freighted, the greater the receipts of the plaintiff, and the less, comparatively, his loss by delays. It is evidence, admissible, as accounting for want of promptness in loading and unloading the coal, and tending to prove the good faith of the defendant in reducing the quantity sent by it in the after part of the season.

3rd. The evidence in the second exception was also admissible. Rakes had...