Cooke v. England

• Decision Date: 18 April 1867
• Parties: ISRAEL COOKE v. SAMUEL ENGLAND.
• Court: Maryland Court of Appeals

27 Md. 14

ISRAEL COOKE v. SAMUEL ENGLAND.

Court of Appeals of Maryland

April 18, 1867

APPEAL from the Circuit Court for Frederick County.

While this case is very clearly and fully stated in the opinion of the Court, it is deemed proper to present substantially the very numerous exceptions in the order in which they were taken in the Court below, omitting, however, the extended argument of counsel, and merely giving the authorities on which they relied:

1 st Exception, (by appellant.) The plaintiff offered in evidence the cause of action, being the agreement to lease, the execution of which was admitted. The defendant objected to the admissibility of this paper in evidence under the pleadings, but the Court (NELSON, J.) overruled the objection and permitted it to go to the jury; and to this ruling the defendant excepted.

2 d Exception, (by appellant.) The defendant objected to the admissibility in evidence of the cause of action, on the ground that it had not been duly and legally stamped, and the stamp thereon cancelled according to the provisions of the Acts of Congress imposing duties for internal revenue. But the Court overruled the objection, and permitted the paper to go to the jury; and to this ruling the defendant excepted.

Exception, (by appellee.) Having given evidence that the bolting cloths in the mill, (which was a flour or grist mill,) were very much eaten by bugs and out of order, the plaintiff proposed to prove that there was a saw mill appurtenant to said grist mill, and run by the same stream of water, and that by a usage in the neighborhood in which this contract was entered into wherever a grist mill was rented to which there was a saw mill so appurtenant, the renting always included the saw mill. To the admissibility of this evidence under the pleadings, the defendant objected, and the Court sustained the objection and refused to allow such testimony to go to the jury. To this ruling the plaintiff excepted.

3 d Exception, (by appellant.) The plaintiff proposed to prove by a practical miller that in the condition of the bolting cloth as it was when he examined it in September 1863, a new bolting cloth was a necessary repair. The defendant objected to the admissibility of this proof but the Court allowed it to go to the jury, and the defendant excepted.

4 th Exception, (by appellant.) The plaintiff then asked the witness: What in his judgment, as an experienced miller, was the effect upon the quality and value per barrel of the flour manufactured in that mill during the plaintiff's lease, whilst the bolting cloths were in the impaired and worn out condition as described by him, and because of want of the necessary repairs to that part of the machinery of the mill? The defendant objected to the competency and admissibility of this question and of the testimony in response thereto. The Court overruled the objection and permitted the question to be asked and answered; and to this ruling the defendant excepted.

5 th Exception, (by appellant.) It had been proved in the preceding exceptions, that Foutz and Groff had made an examination of the mill in September, 1863, and in this exception it was proved by Gartrell, that he was at the mill at the time Foutz was there, and from the mill he, Gartrell, went over to Cooke's store, and Cooke asked him what they were doing at the mill, and he told Cooke they were examining the mill. The plaintiff's counsel then asked, what did Cooke say in that conversation about the mill? The defendant objected to the admissibility of this proof to establish a demand by the plaintiff on defendant to repair the mill, and a refusal by the latter to do so, unless the plaintiff should show that the witness was authorized by the plaintiff to hold said conversation with the defendant, or to demand of the defendant that he should make repairs to the mill. The Court overruled the objection and permitted the evidence to go to the jury, and to this ruling the defendant excepted.

6 th Exception, (by appellant.) It was proved by Mercer that he was hired by the plaintiff as a miller in this mill for three weeks in April, 1863, and that James England, a young man 18 or 21 years of age, was employed by the plaintiff as head miller. The defendant then proposed to ask this witness whether during these three weeks he had an opportunity to ascertain and determine whether or not James England was a competent miller to conduct a mill, and if yea, was he such competent miller or not? The plaintiff objected to this question and to the proposed proof, and the Court sustained the objection and refused to permit the question to be asked, and to this ruling the defendant excepted.

7 th Exception, (by appellant.) The defendant offered to prove in mitigation of damages, that in September, 1843, Henry S. Deihl offered to rent from the plaintiff the mill from the 1st of October, 1863, to 1st of April, 1864, and pay him $237.50, half the year's rent, and $50 in addition, and to buy at a fair cash valuation all the grain, tools and other property which the plaintiff had in and about the mill, and that the plaintiff refused to accept this offer. On the plaintiff's objection the Court refused to permit this evidence to go to the jury, and the defendant excepted.

8 th Exception (by appellant) abandoned.

9 th Exception, (by appellant.) It had been proved on the part of the plaintiff by Davis, that in the latter part of July, 1863, James England (now dead) read a notice in writing to Cooke, who after reading it became excited and refused to take it, and said he would not repair the mill and would sue any man who came there to repair it. In the present exception the defendant proposed to prove by the witness, A. W. Cooke, that he was present at the time spoken of by Davis, and the only paper then delivered by Jas. England, to defendant, was a notice from the plaintiff warning the defendant and his family to keep out of the plaintiff's yard, under a threat of prosecution. On objection by the plaintiff to the admissibility of this proof, the Court rejected it, and to this ruling the defendant excepted.

10 th Exception, (by appellant.) The defendant proved by Zumbrum, that he had carried on this mill for 8 or 9 years, and left it on the 31st of March, 1863. The defendant then proposed to ask him how long would the bolting cloths in use in the mill when he left it, and the plaintiff took possession, have lasted, and made good flour, with proper care and attention on the part of the miller carrying on the mill? The Court refused to allow this proof to be offered, because there was no issue raised by the pleadings to which such testimony was applicable, and to this ruling the defendant excepted.

11 th Exception, (by appellant.) The defendant then proposed to ask this witness what was the condition of the wheat and flour elevators in the mill when the plaintiff went into possession in April, 1863? This evidence the Court also rejected, and the defendant excepted.

12 th Exception, (by appellant.) The defendant then proposed to ask this witness whether the mill was not repaired by the defendant in February, 1863, whilst witness occupied the mill as tenant of the defendant. The Court refused to permit said question to be asked, and to this refusal the defendant excepted.

13 th Exception, (by appellant.) The defendant then proposed to ask the witness whether the mill had been put in good repair at any time by the defendant prior to the 1st of April, 1863, and, if so, when, and was it on the 1st of April, 1863, when the plaintiff took possession, in as good repair as it had been so placed in by defendant? The Court refused to permit the question to be asked, and to this refusal the defendant excepted.

14 th Exception, (by appellant.) The defendant proposed to prove by Zumbrum that the condition of the bolting cloth in use on the 1st of April, 1863, was such that if a competent and careful miller had been in charge of the mill from that time forward, and if the owner of the mill had procured and delivered to him a new bolting cloth on the 1st of April, 1863, with authority to have the same put in by a mechanic competent to do so, at the owner's expense, whenever the miller might think proper, such competent and careful miller would not, in the exercise of proper care and skill, have caused the same to be put in earlier than October or November, 1863, because the old cloth then on was sufficient to manufacture good flour with reasonable care and attention until that time, and because during the season of warm weather the bolting cloth in use is peculiarly liable to injury by worms and bugs, and new cloths are usually kept by prudent and careful millers to put on during the season of cold weather, in cases where the bolting cloth in use is sufficient to manufacture good flour during the summer months. This evidence the Court would not allow to be given to the jury, and to this ruling the defendant excepted.

15 th Exception, (by appellant.) The plaintiff had in order to swell the damages proved, in the preceding exceptions, that the defect in the bolting cloths was such as to prevent the making of flour that would pass the necessary inspection as extra or superfine in the Baltimore market. In this exception the defendant proposed to prove by the witness Zumbrum, that the country work at this mill was large; that during the summer months it was the usual custom of witness whilst conducting this mill, to supply the neighborhood with flour, and to do chopping for the neighborhood, and whilst such chopping was being done, and whilst the water was low the miller was exclusively or to a great extent engaged in that work, and flour could not be made at the same time; that the power of the mill during the summer...