Crowther v. Hirschmann

• Decision Date: 10 March 1938
• Docket Number: 10.
• Citation: 197 A. 868,174 Md. 100
• Parties: CROWTHER v. HIRSCHMANN.
• Court: Maryland Court of Appeals

197 A. 868

174 Md. 100

CROWTHER v. HIRSCHMANN.

No. 10.

Court of Appeals of Maryland

March 10, 1938

Appeal from Court of Common Pleas of Baltimore City, Samuel K Dennis, Judge.

Action by Lester H. Crowther, executor under the last will and testament of Robert S. Weaver, late of Baltimore City deceased, against Adolph B. Hirschmann, to recover a loan secured by an assignment of an interest in a testamentary trust fund. The case was removed from the superior court to the court of common pleas, where a judgment was entered on a verdict for defendant, and the plaintiff appeals.

Affirmed.

Lester H. Crowther and Charles F. Obrecht, both of Baltimore, for appellant.

Jacob Kartman and Leo M. Alpert, both of Baltimore (Makover & Kartman, of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

MITCHELL Judge.

This is the second time the case now under consideration has been before this court. The first appeal was from a judgment entered upon verdict for the defendant, directed by the trial court at the conclusion of the plaintiff's testimony, and resulted in a reversal of the judgment and the award of a new trial. 172 Md. 697, 190 A. 760, 761.

Subsequently, at the suggestion of the plaintiff, the case was removed from the superior court of Baltimore City, to the court of common pleas of said city, and from a judgment entered upon a verdict for the defendant, in the latter court, this appeal was taken.

The defendant is sued at law on common counts for money lent and for money received for the use of the plaintiff's decedent, and on a special count, which sets forth, in substance, that on or about the 24th day of May, 1934, the defendant agreed with the plaintiff's decedent to lend the latter the sum of $2,250; that as evidence of said loan the decedent executed and delivered to the defendant his promissory note bearing said date and payable one year after date thereof, for said sum, with interest thereon at 6 per cent. per annum, and at the same time executed and delivered to the defendant, as security for the aforesaid loan, assignments of the decedent's interests, in the estates of Frank L. Weaver, late of Baltimore City, deceased, and John T. Welsh, late of the State of New York, deceased; each of said assignments being in the sum of $2,250. That the loan was to have been made immediately upon the execution and delivery of the note and assignments; that the defendant failed to make the loan as agreed upon, having only paid the decedent on account thereof the sum of $1,050, notwithstanding that he, the defendant, collected from the trustees of the estate of the said John T. Welsh the sum of $2,250. Accordingly, it is alleged that the defendant is indebted to the plaintiff for the difference between the amount actually loaned the decedent and the amount actually collected by the defendant, under and by virtue of said assignments, or the sum of $1,200.

To the declaration the defendant pleaded the general issue pleas, (a) that he never promised, and (b) that he never was indebted, as alleged; and at the trial below five exceptions were reserved by the appellant.

Four of these exceptions relate to rulings of the trial court on evidence and the fifth relates to its rulings on the prayers. As the first two exceptions involve the same rule of evidence, they will be discussed together.

At the trial of the case, the appellant produced as a witness in his behalf Beatrice Bosworth, the bookkeeper of the appellee, whose name appears as a witness to the signature of Robert S. Weaver, the plaintiff's decedent, on the respective assignments hereinbefore mentioned, and who identified duplicate originals of the two papers as being genuine. The witness testified that she saw the plaintiff's decedent execute the two assignments on May 24, 1934, in the presence of the appellee and in the latter's office; that at the same time the promissory note was executed; that one of the assignments was filed in the orphans' court of Baltimore City, in the estate of Frank L. Weaver, and the original of the other assignment was filed in the estate of John T. Welsh, in New York. The witness further testified that the assignor received installment payments aggregating $1,050, on account of the transaction, and that the assignee collected from the trustees of the Welsh estate the full sum of $2,250, as alleged in the declaration.

It was conceded by counsel for the respective parties that the installment payments above mentioned, extended over the period beginning May 9, and ending November 19, 1934, and on cross-examination the witness stated that the installment payments were so made because the plaintiff's decedent requested that they be made as his needs might require; that she heard the discussion between the appellee and the plaintiff's decedent; and that the latter was to receive $150 at the inception of the agreement, and $900 balance to be paid as and when requested.

Three canceled checks, aggregating the sum of $150, dated May 9th, May 17th, and May 24th, respectively, signed by the appellee and payable to the order of the plaintiff's decedent, were then identified by the witness.

At this point she was asked the following questions:

(a) 'On or after May 24th, 1934, Mrs. Bosworth, was there any agreement by Mr. Hirschmann with Robert S. Weaver to pay any more than the sum of $1050?'

(b) 'Was the agreement made between Mr. Hirschmann and Mr. Weaver on May 24th, to pay any other sum than an agreement of $1050.00 in instalments as Mr. Weaver's needs might require?'

To the first interrogatory the witness stated: 'There was never any agreement to pay more than $1050.' And to the second she replied: 'There never was.'

Objections to each of the aforegoing questions were seasonably made, and both were overruled by the trial court. These rulings form the basis of the appellant's exceptions 1 and 2.

It is the contention of the appellant that the trial court erred in overruling the objections and permitting the questions to be answered: (a) Because they elicited from the witness a conclusion of law; (b) because they sought to have the witness construe the assignments then in evidence; (c) in that the questions concerned matters of which the witness could have no knowledge as to the facts; and (d) that their purport was to introduce parole evidence to contradict and vary the terms of the written agreements. With these several contentions, however, we do not aagree. In this connection, it should be borne in mind that Mrs. Bosworth was produced by the appellant, and that at the time the questions were asked, she was on cross-examination. She had testified on behalf of the appellant as to the execution of the several assignment documents.

Furthermore, the record shows that, without exceptions to the rulings, the witness was permitted to testify that there was a written memorandum as to how the payments were to be made, and how much they were to be, and that that memorandum was executed on May 17th. As heretofore indicated, she had previously testified that she heard the transaction discussed by the respective parties; that the sum of $1,050 only was to be paid the appellant's decedent, and she had detailed the manner in which the installment payments were to be made.

No exceptions were taken to the admission of the aforegoing evidence, relating, as it did, to discussions and transactions between the parties, antedating the execution of the assignments. At the time the questions were put to the witness, both of the assignments were in evidence and she had testified to the execution of the same. Her answers to the interrogatories did not add anything to the facts to which she had prior thereto testified. Inasmuch as the trial court, upon objection, refused to admit in evidence the alleged memorandum of May 17th, which ruling was in conformity with the ruling of this court in the former appeal, evidence as to the alleged contents of the paper had no proper place in the case, but, as stated, that testimony is in the record before us, without exception, and, in view of that fact it is our conclusion that the action of the lower court in admitting the questions and answers now under consideration does not mount up to reversible error.

The same witness was asked whether on May 24, 1934, 'or at any time thereabouts,' Hirschmann, the appellee, and Weaver, the appellant's decedent, discussed the reason or purpose for the execution of the assignment filed in the estate of Frank L. Weaver, and her reply was in the affirmative. She further testified that Mr. Crowther, the appellant, at that time was present; that he then represented the decedent; and that Hirschmann spoke to Crowther several times about the estate of Frank L. Weaver. Then appears the following excerpt from the record:

'Q. Now, can you tell us if there was any discussion between the parties as to the purpose or reason for the execution of the Baltimore assignment?

'(Mr. Crowther) When?

'(The Court) May 24, she said at the time----

'(Mr. Kartman) Yes, sir.

(The Court)--which necessarily means May 24. Just answer yes or no.

'A. Yes, there was.

'Q. Can you tell us what that discussion was?'

To the...