Bullock v. Hunter

• Court: Maryland Supreme Court
• Writing for the Court: BARTOL, C.J., delivered the opinion of the Court.
• Citation: Bullock v. Hunter, 44 Md. 416 (Md. 1876)
• Decision Date: 10 March 1876
• Parties: JOHN S. BULLOCK v. JAMES HUNTER, JR.

44 Md. 416

JOHN S. BULLOCK v. JAMES HUNTER, JR.

Court of Appeals of Maryland

March 10, 1876

APPEAL from the Superior Court of Baltimore City.

First and Second Exceptions stated in the opinion of the Court.

Third Exception.--At the trial of the cause below the plaintiff offered the following prayer:

If the jury shall find from the evidence that Isaac M. Denson, John S. Bullock and John D. Quincy were trading together as partners between the first of June, 1871, and the last of August, 1872, and that during this time, said partners purchased goods from the plaintiff, and that part of said goods are still not paid for, then the plaintiff is entitled to recover against the defendant in this action, such sum as the jury shall find to be due from said partners to the plaintiff on account of said purchases.

And the defendant Bullock offered the seven following prayers:

1. There is no evidence in this cause, of the co-partnership of the defendants, and the plaintiff is not entitled to recover.

2. That there is no sufficient evidence of the delivery of the articles charged in the account filed in this case, and the plaintiff cannot, therefore, recover.

3. That the testimony of Woolfork having been read by him from a memorandum book, not made by himself, be, and the same is excluded from the consideration of the jury.

4. That the evidence in this case is not legally sufficient to entitle the plaintiff to recover.

5. That the witness, James Hunter, Jr., showing by his examination that he has no independent and distinct recollection of the charges in the account filed with the declaration in this case, all the testimony offered by him in relation to said account, be, and the same is hereby excluded from the consideration of the jury.

6. That in order to find for the plaintiff in this case, the jury must find from the evidence, that the goods charged in the account filed with the narr. in the case, were sold by said plaintiff to the defendant, at the price charged in said account, and at the dates therein named, and were delivered to the defendants in Baltimore City or at any other place by their order, and if they do not find all of these facts from the evidence, then their verdict must be for the defendant.

7. That the account filed with the bill of particulars, is not evidence, and the jury shall not consider the same, in making up their verdict, if they shall find.

The Court (DOBBIN, J.,) granted the prayer of the plaintiff, and refused the first, second, fourth, fifth and sixth prayers of the defendant; the fourth prayer was refused because there was evidence to go to the jury, of the sale and delivery and the price; the fifth prayer was refused, because the evidence of the witness Hunter, and the reliance to be placed upon it were matters for the jury. The Court also refused the third prayer as offered, but granted it with the following additional instruction of its own: "that the entries made by Woolfork himself, and his brother at his dictation and in his presence, are evidence to go to the jury, the witness having sworn that he had personal knowledge of the transaction so entered. But the entries made by his brother from his own memoranda are not evidence."

The Court likewise refused to grant the defendant's seventh prayer as offered, but granted it with the following qualification which it added: "except in so far as they may find the same has been proved by the testimony in the cause."

The defendant excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, MILLER and ALVEY, J.

Samuel Snowden, for the appellant.

The account placed in the hands of the witness, and made out by him from memoranda in his possession was clearly inadmissible to refresh his memory. It was not made at the time of the alleged sale of the goods, nor was the copy seen by him at that time. The question is settled by the cases of Green vs. Caulk, 16 Md., 556, (573, 574;) Ward vs. Leitch, 30 Md., 326; Jones vs Stroud, 12 E. C. L., 86. Under these authorities the Court below erred in allowing the witness to refresh his memory with the account, as it was only a copy made by him from original memoranda. If his recollection had been distinct as to the items, he might have testified without refreshing his recollection. This memoranda was even made by him from accounts furnished to him by his foreman, which would make the copy used by him to refresh his memory, a third remove from the original memoranda. The fact that he testified that it was an original account did not make it so, because his testimony clearly shows it was a copy. The objections of the defendant in the first and second bills of exception should have been sustained.

There was no proof of the names of the parties who composed the firm of Denson, Bullock & Quincy, and the first prayer of the defendant should have been granted. The suit was brought upon a joint contract against the defendants as co-partners, and the burden was upon the plaintiff to prove the names of the co-partners. 2 Greenleaf's Ev., sec. 483.

The only proof offered to prove this fact was by the witness Hunter, who said the firm of Denson, Bullock & Quincy, was composed of Denson, Bullock & Quincy, and that Mr. Bullock was a member of the firm. The names in full of the partners were not given, and therefore this evidence did not sustain the burden resting upon the plaintiff; and having thus failed to prove a fact necessary to make out his case, the prayer should have been granted.

The entries made by Woolfork, in a memorandum book were not in themselves evidence of the charges which he then made, whether the same was entered by himself or by his brother, and although he might be allowed to refresh his memory with them. 2 Taylor Ev., 1220, sec. 1268; 66 E. C. L., 291, 293, 298 and 304; Payne vs. Ibbitson, 27 L. J. Eq., 341.

In order to entitle the plaintiff to recover for the goods and materials sued for, it was necessary that the plaintiff should prove that the goods were sold at the times and for the prices charged, and that they were delivered to the defendants, which was all that was asked by the sixth prayer of the defendant. Bundy vs. Ayre, 18 Vt., 497; 3 Phill. Ev., (2 nd Ed.,) t. p. 339.

John Thomson Mason and John T. Mason, R., for the appellee.

The account filed with the declaration was placed in the hands of the witness, Hunter, who testified that it "was an original account made by himself from memoranda taken by himself at the time and not extended, and was not a copy of any book," and on cross-examination he further said that the account was made out "when the matters were comparatively fresh in his memory, partly from memory and partly from his blotter," &c., and then swore positively that he had a distinct and independent recollection of the items of the account. It may, therefore, fairly be contended that this account was in the nature of an original document, and therefore clearly admissible under the ruling in the case of Burton vs. Plummer, 2 Ad. & Ell., 342; 1 Greenleaf's Ev., secs. 436, 437; 2 Taylor on Ev., sec. 1265; 1 Phill. Ev., 289, (7 th Ed.;) 2 Phill. Ev., note to page 290; Henry vs. Lee, 2 Chitty's Rep., 124; Feeter vs. Heath, 11 Wend., 485; Hill vs. State, 17 Wisconsin, 679; State vs. Cheek, 13 Iredell, 119; Robertson vs. Lynch, 18 Johns., 452-3-7; Harrison vs. Middleton, 11 Grat., 554; Doe vs. Perkins, 3 Term. R., 753.

The point under discussion seems never to have been raised in Maryland, although there are numerous cases on the use of memoranda. Martin vs. Good, 14 Md., 408; Spring Garden M. Ins. Co. vs. Evans, 15 Md., 61; Green vs. Caulk, 16 Md., 572; Ward vs. Leitch, 30 Md., 333; Waters vs. Waters, 35 Md., 531.

Green vs. Caulk, is perhaps the leading case in Maryland on this branch of the law, but upon examination it is quite evident that the point under discussion was not decided in that case. In the first exception, a witness was asked to testify "as to the correctness of charges in a bill not made out by himself, and as to the time of the making out of which there is no evidence, and in regard to all the items of which he has not a recollection," nor was there "anything in the evidence going to show that he ever saw it before the trial."

The appellant's first prayer which asked the Court to instruct the jury that there was no evidence of the partnership was properly rejected. Because the partnership might have been inferred by the jury from the holding out and dealings of the defendants, their acceptance and payment of the plaintiff's drafts, &c., &c., &c.

As to third persons very slight evidence of a partnership is sufficient--any holding out to the world will do. And this is always a question for the jury, and a prayer which ignores a partnership, where there is any evidence, is vicious. 1 Parsons on Contracts, 158; Thomas vs. Green, 30 Md., 1; Fulton vs. McCrackan, 18 Md., 528.

The objection made in the Court below was that the witness, Hunter, in testifying as to who composed the firm, did not mention the first names of the partners. There were no others of the same name mentioned in the evidence, and there could not therefore have been a shadow of doubt as to who were meant.

The fourth prayer that the evidence was not sufficient to entitle the plaintiff to recover was clearly vicious. Blair vs Blair, 39 Md., 556; Masey vs. Suter, 22 Md., 85; Hatton vs. McClish, 6 Md., 417; Penn vs. Flack, 3 G. & J., 369; Purner vs. Piercy, 40 Md., 216, 221. Moreover there was evidence circumstantial and direct, and uncontradicted of the sale, delivery and price of the goods. It is only when the jury is left to "wild and irrational conjecture and licentious speculation" tha...