Doggett v. Tatham

• Court: Maryland Supreme Court
• Writing for the Court: STOCKBRIDGE, J.
• Citation: Doggett v. Tatham, 116 Md. 147, 81 A. 376 (Md. 1911)
• Decision Date: 23 June 1911
• Parties: DOGGETT v. TATHAM.

81 A. 376

116 Md. 147

DOGGETT v. TATHAM.

Court of Appeals of Maryland

June 23, 1911

Appeal from Baltimore City Court; Thos. Ireland Elliott, Judge.

Assumpsit by Charles Tatham, assignee of the Patapsco Stone Company against Hilton J. Doggett. From a judgment for plaintiff defendant appeals. Reversed, and new trial granted.

Joseph N. Ulman, for appellant.

J Royall Tippett, for appellee.

Argued before BOYD, C.J., and PEARCE, BRISCOE, BURKE, PATTISON, URNER, and STOCKBRIDGE, JJ.

STOCKBRIDGE J.

The facts out of which this litigation arises are comparatively simple. On the 14th of April, 1906, the Patapsco Stone Company, a corporation organized under the laws of New Jersey, entered into a contract with Hilton J. Doggett to furnish for his account to customers to be secured by him refuse or powdered soapstone to the extent of at least 500 tons every three months, the same to be delivered f. o. b. car at Marriottsville, at a stipulated sum per ton, and by a letter dated May 22, 1906, to furnish crude soapstone in bulk f. o. b. cars Marriottsville, at a different price. On the 21st of June the defendant notified the stone company that he had orders for 2,865 tons to be shipped during the ensuing 12 months, and by letter dated June 27th the stone company advised the defendant that they would undertake to fill orders for the amount so named by him. The contract between the parties contained this stipulation: That "the party of the first part (the stone company) shall ship all the refuse or powdered soapstone produced by it that the party of the second part can find customers for up to the limit of its operations, except in case of loss or damage by fire or water, accidents or unavoidable delays beyond the control of the party of the first part, and also except in case the said party of the first part should for any reason cease operations." The defendant appears from time to time to have sent in orders to the stone company, and the same were shipped by the company up until August, 1906, when by reason of a freshet a landslide took place at the quarry of the company, and they ceased to make further deliveries, although they do not seem as late as the month of September of that year to have abandoned the idea of carrying on business, and from that account filed with the declaration shipments appear to have been made as late as August 31st and September 3d. The present suit is brought by the assignee of the stone company against the defendant to recover for certain stone, both crude and powdered, alleged to have been delivered upon the plaintiff's order, and not paid for. The suit is in the form of an action of assumpsit upon the common counts, and not in covenant upon the sealed contract between the parties. To this the defendant filed general issue pleas, and the case came up for trial before a jury. The record presents 18 bills of exception, of which the last is to the action of the court upon the prayers, and the others to various rulings of the court upon the evidence.

The bills of exception numbered, respectively, 1, 2, 3, 8, 9, 10, 11, 13, 14, 15, and 16, may all be grouped together. In each instance they are founded upon rulings by the trial court on objections to the testimony given by one or another of the witnesses from books or memoranda, or motions to strike out such evidence, when such books or memoranda were not shown to have been books of original entry, or to have been made under the direction or supervision of the witness who was testifying, but, on the contrary, to have been made by clerks who were not shown to be either dead or unobtainable. With regard to testimony of this character, the rule has been repeatedly laid down by this court that such evidence is not admissible, and that its admission constitutes reversible error. Green v. Caulk, 16 Md. 556; Thomas v. Price, 30 Md. 483; Bullock v. Hunter, 44 Md. 416; Heiskell v. Rollins, 82 Md. 14, 33 A. 263, 51 Am. St. Rep. 455; Richardson v. Anderson, 109 Md. 641, 72 A. 485, 25 L. R. A. (N. S.) 393; Hoogewerff v. Flack, 101 Md. 382, 61 A. 184. The brief with regard to the first three bills of exception of the appellee contains the statement that, after having been admitted, the lower court consequently struck out the objectionable evidence, but the record does not clearly bear out this statement, and, even if such were the fact, the evidence admitted and which formed the ground of the other exceptions named was improperly before the jury.

The fourth exception raises a question with regard to which there is no exact adjudication in this state. The evidence of Charles A. Williams was being taken in Virginia under the provisions of section 16 of article 35 of the Code of Public General Laws. The plaintiff was represented at the taking of this evidence, but the defendant was not, and on the reading of the deposition the fifteenth question was objected to upon the ground that it was leading, though no such objection appears to have been made or noted at the time when the testimony was taken. On behalf of the defendant, it is urged that he was entitled to the hearing to object to the question on the ground of its leading character, and that it was his first opportunity to object because of the expense to which the defendant would be subjected if compelled to be represented by counsel at the taking of foreign depositions. With this contention this court cannot agree. It has long been the recognized rule in this state that, where a question was supposed to be objectionable upon this ground, the objection and the reason for it must be noted at the time, in order to afford the party propounding the question an opportunity to reframe it in such form that it would not be open to this objection. The rule is a most salutary and wise one if any regard is to be had for the rules of evidence, and the mere question of convenience or expense to a party litigant cannot be...