Brinkley v. Platt

• Decision Date: 24 June 1874
• Citation: 40 Md. 529
• Parties: JOSEPH B. BRINKLEY and JOSEPH E. BRINKLEY, JR., trading as JOSEPH B. BRINKLEY & SON, v. L. B. PLATT and J. B. PLATT.
• Court: Maryland Court of Appeals

40 Md. 529

JOSEPH B. BRINKLEY and JOSEPH E. BRINKLEY, JR., trading as JOSEPH B. BRINKLEY & SON, v. L. B. PLATT and J. B. PLATT.

Court of Appeals of Maryland

June 24, 1874

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., GRASON, MILLER, ALVEY and ROBINSON, J.

John H. Handy and A. Stirling, Jr., for the appellants.

Henry Stockbridge and I. Nevett Steele, for the appellees.

MILLER J., delivered the opinion of the Court.

This was an action of deceit instituted by the appellants against L. B. Platt, H. S. Platt and J. B. Platt, as joint tort feasors. The plaintiffs were partners, under the firm name of Joseph B. Brinkley & Son, doing business in Baltimore city as packers of canned oysters, fruit and vegetables. The three defendants were also partners, though not sued as such, in the same business in Baltimore, under the firm name of Platt & Co. The deceit alleged consisted of false representations made by the defendants to the plaintiffs respecting the financial standing and credit of the firm of Palm, De Ruyter & Co., of Cincinnati, by means of which the plaintiffs were induced to sell goods on credit to that firm and lost the same.

The declaration avers that the defendants well knowing that said Palm, De Ruyter & Co., were then in bad and insolvent circumstances, and unfit to be trusted with goods on credit and " contriving and fraudulently intending to deceive and injure the plaintiffs in this behalf, fraudulently and deceitfully" made to the plaintiffs the representations respecting their credit complained of. The defendants jointly pleaded that they did not commit the wrong alleged, and the case went to trial on issue joined on this plea.

After the plaintiffs had closed their testimony, the defendants, L. B. Platt and J. B. Platt, prayed the Court to instruct the jury that the plaintiffs have not offered any evidence to warrant the jury in finding a verdict against them, and as to them their verdict must be for the said defendants. This instruction the Court granted and directed the jury to find a verdict for these defendants. To this ruling and direction the plaintiffs excepted.

The defendant then called and examined the defendant, H. S. Platt, as a witness, and after his testimony had been given, the plaintiffs moved the Court to strike out the verdict as to J. B. Platt and reinstate the case as to him, on the ground that the testimony of H. S. Platt given by the defendant, contains evidence to go to the jury, to show a responsibility by J. B. Platt for the representations of H. S. Platt to the plaintiffs. But the Court refused to grant this motion, and to this refusal the plaintiffs excepted.

These are the only exceptions in the record, and they present two questions.

1st. Was the Court right, assuming it to have taken a correct view of the testimony, in directing a verdict for these two defendants at the close of the plaintiffs' case?

2nd. Was there any evidence in the cause legally sufficient to warrant the jury in finding a verdict against these defendants, or either of them?

1st. As to the first question, the case of Hambleton, et al. vs. McGee, 19 Md., 43, is conclusive, unless the Evidence Act of 1864, ch. 109, has the effect of changing the established practice. In that case it was decided that in actions of tort against several defendants, if at the conclusion of the plaintiffs' case, there is no evidence against one or more of them, they are entitled to be acquitted before any part of the defence is gone into. "Such practice," the Court say, "is conformable to reason and necessary for the furtherance of justice, for otherwise it would be in the power of a plaintiff to deprive a defendant of the benefit of material and competent witnesses by joining them in the action." Has the Evidence Act removed the reason on which this practice is founded? We think not. That Act, while it removes incapacity on the ground of interest, nevertheless, allows the fact of interest to be shown to the jury in order to affect the credibility of the witness. If, therefore, it be reasonable and just that a defendant in such cases should have the benefit of the testimony of those of his co-defendants, upon whom the plaintiff's evidence has failed to fasten any culpability, it is equally so, that he should have it freed from the imputation of interest by their acquittal, or a verdict in their favor.

2nd. The second question depends solely upon the testimony. After a careful examination of the proof in the record, we find no cause to dissent from the view taken of it by the learned Judge of the Superior Court. It appears the firm of Palm, De Ruyter & Co. was formed on the 28th of March, 1872, and failed and made an assignment for the benefit of its creditors on the 16th of August following. About the 3rd of July, 1872, the plaintiffs' firm received from their travelling agent an order to ship a bill of goods to Palm, De Ruyter & Co., and the agent's letter stated that this firm "refer to Platt in Baltimore." On the 5th of July, Joseph E. Brinkley, Jr., one of the plaintiffs, saw H S. Platt at the dinner table of the Carrollton hotel, in Baltimore, where both of them boarded, told him of this order, and said to him, that Palm, De Ruyter & Co. had referred to Platt & Co., of Baltimore, as to their responsibility; H. S. Platt first asked what credit is requested, and being informed it was sixty days, he then said " they are perfectly good," and that his firm " would sell them all they wanted. " The plaintiffs thereupon on the 9th and 10th of July, shipped the goods to the value of $559.75, and have since received no pay therefor, except a dividend of twenty per cent. from the assignee. This damage to the plaintiffs in consequence of relying on this alleged false and fraudulent representation, constitutes the gist of this action. But this declaration was made by H. S. Platt alone. Neither of the other defendants was present when it was made, and there is no proof they had any knowledge of it, or of this interview until they heard it testified to at the trial. In order therefore, to make them responsible, it was necessary for the...