Catanzaro Di Giorgio Co. v. F.W. Stock & Sons
| Decision Date | 23 June 1911 |
| Citation | 81 A. 385,116 Md. 201 |
| Parties | CATANZARO DI GIORGIO CO. v. F. W. STOCK & SONS. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Thos. Ireland Elliott, Judge.
Action by F. W. Stock & Sons against the Catanzaro Di Giorgio Company. Judgment for plaintiffs, and defendant appeals. Reversed.
Eugene O'Dunne and William S. Bryan, Jr., for appellant. Clarence A. Tucker and Joseph N. Ulman, for appellees.
Argued before BOYD, C.J., and BRISCOE, PATTISON, URNER, and STOCKBRIDGE, JJ.
This is an action on the common counts in assumpsit originally brought in the superior court of Baltimore city, on the 5th day of June, 1901, by the appellee against the appellant, on an open account, to recover for the value of a cargo of fruit, consisting of bananas, oranges, nuts, and other tropical fruits, shipped from Jamaica by steamer to Baltimore. The cargo was consigned by the bill of lading to the appellee, but on proper indorsement by them was turned over to the appellant, who subsequently sold the fruit.
The case has been tried at least five times in the Baltimore city courts, resulting in several verdicts for the plaintiff, one in favor of the defendant, and several mistrials. To the declaration filed on the 5th day of June 1901, the defendant pleaded the general issue and pleas in assumpsit.
On June 4, 1903, the plaintiff, by leave of court, filed the following amended declaration in trover: "For that the defendant converted to its own use and wrongfully deprived the plaintiffs of the use and possession of the goods and chattels of the plaintiffs; that is to say, of certain merchandise, consisting of bananas and oranges, and valued at $723.25, and to this declaration the general issue plea of non cul in tort was filed. On October 27, 1903, the case was removed to the Baltimore city court, and upon trial, on the 12th of November, 1903, a verdict was rendered by a jury for $776.96 in favor of the plaintiff, but which was subsequently set aside by the court, and a new trial granted. On March 29 1905, a trial was begun and a jury was sworn, but, upon leave granted to amend the declaration from trover to assumpsit the case was continued. On April 4, 1905, the appellees filed a second amended declaration, changing the form of action from trover to assumpsit on the common counts, and claimed $1,500 damages, and to this declaration was annexed a statement of account between the Catanzaro Company and F. W. Stock & Sons. To the declaration, the appellant, on the 7th of April, 1905, filed the general issue pleas and two special pleas of limitation, as follows: "For a first plea, that it never was indebted as alleged; and for a second plea says that it did not promise as alleged; and for a third plea the defendant says that the alleged cause of action did not accrue within three years before this suit; and for a fourth plea the defendant says that the alleged cause of action did not accrue within three years prior to the commencement of this suit, to wit, March 31, 1905." On the 27th day of April, 1905, the plaintiff joined issue on the first and second pleas, and filed a replication to the third and fourth pleas. Subsequently petitions, motions, counter motions, and other proceedings almost too numerous to mention, were interposed before another trial was had, as will appear from the following docket entries in the case:
We have thus transcribed and inserted the docket entries because it appears there are no bills of exceptions presenting the rulings of the court below, except upon the evidence and prayers, and the rulings of the court upon the motions are not set out by the record in a way so as to enable us to review them in this court.
It is clear upon all the authorities that no question shall be considered or passed upon by this court which does not appear by the record to have been raised or passed upon by the court below. Long v. Hawken, 114 Md. 240, 79 A. 190; Palmer v. Hughes, 84 Md. 658, 36 A. 431; New & Son v. Taylor, 82 Md. 41, 33 A. 435; Wilkin Mfg. Co. v. Young, 115 Md. --, 81 A. 879; Warren Bros. v. Kendrick & Roberts, 113 Md. 603, 77 A. 847, 140 Am. St. Rep. 445.
In this case, the rules of court are not in the record, and we have nothing except the docket entries, and these do not show why the court permitted the plaintiff to strike out the replication to the fourth plea, or why it struck out the fourth plea at all, and the presumption therefore is the court ruled and decided correctly. Cushwa v. Cushwa, 9 Gill, 247; Newcomer v. Keedy, 9 Gill, 263; Thorne v. Fox, 67 Md. 74, 8 A. 667; Stockett v. Sasscer, 8 Md. 375; Hutton v. Marx, 69 Md. 255, 14 A. 684.
Coming now to the rulings of the court upon the prayers and the evidence, it appears that at the trial the defendant reserved 40 exceptions, 39 to the rulings upon the evidence, and the fortieth to the ruling of the court in granting the plaintiff's first, third, fourth, and ninth prayers, and in refusing the defendant's first, fourth, fifth, sixth, seventh, ninth, fourteenth, fifteenth, sixteenth and seventeenth prayers, and in overruling the defendant's special exceptions to the third and ninth prayers of the plaintiff. There were 27 prayers submitted in all.
The plaintiff's first prayer was clearly erroneous, and should have been rejected. It was error to have instructed the jury that the verdict must be for the plaintiff for the value of the goods at the time of their sale to the defendant. The proper measure of damages, in an action of this kind, for money had and received by the defendant for the use of the plaintiff, would be the amount of money received by the defendant for the use of the plaintiff, with interest in discretion of the jury. In Ruhl v Corner, 63 Md. 179, it was held that a similar prayer was correctly refused, for it claims as the measure of damages that which belongs to the action of trover, and not to the form of action adopted by the plaintiffs. In the action of assumpsit, the plaintiff can only recover for the money had and received from the sale to the use of the plaintiff. This prayer was therefore inconsistent with the form of action. Thomas v. Sternheimer, 29 Md. 268; Heinekamp v. Beaty, 74 Md. 393, ...
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