Calvert v. Friebus

• Decision Date: 21 February 1878
• Citation: 48 Md. 44
• Parties: GEORGE H. CALVERT, JR. v. BERTHA FRIEBUS.
• Court: Maryland Court of Appeals

48 Md. 44

GEORGE H. CALVERT, JR. v. BERTHA FRIEBUS.

Court of Appeals of Maryland

February 21, 1878

APPEAL from the Circuit Court for Prince George's County.

This suit was brought by the appellee to recover from the appellant on an open account. At the trial of the case which was submitted to the Court, (MAGRUDER, J.,) by consent of parties, after the plaintiff had offered evidence in support of the account sued on, the defendant offered to read in evidence the statement referred to in the deposition of George A. Bohrer, which was taken under a commission which had been issued in the case, and the evidence of the said deponent, to the effect that the items of the said statement were given by the plaintiff from the book, and taken down by the said deponent, who had been appointed with William H Spencer, referees, by the parties to adjust the dispute between them as to said account, and who were then acting as such referees. Upon objection by the plaintiff, the Court rejected this offer and the defendant excepted. Judgment being for the plaintiff, the defendant appealed.

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

C C. Magruder, for the appellant.

N C. Stephen, for the appellee.

ALVEY J., delivered the opinion of the Court.

The plaintiff, by her action in the Court below, sought to recover of the defendant the amount of an open account; but before suit brought the parties had attempted to have their matter in dispute settled by arbitration. The arbitrators were selected, and they heard the statements of the parties but failed to arrive at a conclusion. And the principal question here is, whether the statement of the plaintiff made to the arbitrators, in respect to her account, and the extent and amount of it, was admissible proof on the offer of the defendant, in the trial below, for the purpose of showing that the amount of the account claimed before the arbitrators was less than that claimed on the trial in the Circuit Court?

The offer, as stated in the bill of exception, was of a certain statement of account, referred to as part of the deposition of the witness Bohrer, and his testimony "to the effect that the items of the said statement were given by the plaintiff from her book, and taken down by the witness, while he, and a certain Spencer, were acting as referees to adjust the dispute between the parties in regard to said account."

This offer, thus made, the Court below rejected, and ruled that the statement and declarations or admissions of the plaintiff were inadmissible, because they appeared to be made with a view to a compromise and settlement, and for the additional reason, that such declarations and statement were secondary evidence only of the charges made in the plaintiff's book of accounts.

We think that neither of the grounds upon which the evidence was rejected can be sustained, and that there was error in the ruling of the Court.

1. As to the first proposition, that the declarations and admissions were made with a view to a compromise, and therefore not admissible, it is sufficient to say that the principle invoked does not apply to the case. Where there has been an offer by a party, either verbal or in writing expressly stated to be made without prejudice, or where from the nature of the offer, and the circumstances under which it was made, it may be reasonably inferred that the offer was but the expression of a willingness to pay money, allow credit, deliver property, or do some other thing, by...