Fifer v. Clearfield & Cambria Coal & Coke Co.

• Decision Date: 11 January 1906
• Citation: 62 A. 1122,103 Md. 1
• Parties: FIFER v. CLEARFIELD & CAMBRIA COAL & COKE CO.
• Court: Maryland Court of Appeals

62 A. 1122

103 Md. 1

FIFER v. CLEARFIELD & CAMBRIA COAL & COKE CO.

Court of Appeals of Maryland

January 11, 1906

Appeal from Baltimore City Court; Daniel Girard Wright, Judge.

Action by Clarence A. Fifer, trading as the Cambria Coal Company against the Clearfield & Cambria Coal & Coke Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, SCHMUCKER PEARCE, JONES, and BURKE, JJ.

William Colton and Martin Lehmayer, for appellant.

Edgar Allan Poe and John Prentiss Poe, for appellee.

PAGE J.

This suit was brought to recover damages for the alleged failure and neglect of the appellee to ship and deliver to the appellant certain coal, alleged to have been sold by the latter to the former, by special contract in writing dated the 5th day of May, 1902. The court by its instruction took the case from the jury, and, the judgment being for the appellee, this appeal was taken.

The narr. alleges that on the 5th of May the appellant, by his general agent, Dietrich, entered into a written contract with the said appellee, by Rogers, Holloway & Co., agents of the appellee, "duly authorized by it to execute said contract in its behalf." The written contract is thus set out, and it is further alleged that the appellee refused to make any shipments of coal under the contract, etc., by reason whereof the appellant sustained great loss and damage etc. The appellee pleaded that it was never indebted, and never promised as alleged, and for a third plea that the alleged contract was procured by the fraud of the appellant. At the trial the appellant contended that, the contract having been set forth verbatim in the declaration and not having been denied by the appellee in its next succeeding pleading, it must be taken as admitted for the purposes of this action, as well as the agency of Rogers, Holloway & Co. Such a construction, however, is broader than that warranted by the terms of the statute, which are: "Whenever the partnership of any parties, or the incorporation of any alleged corporation, or the execution of any written instrument filed in the cause is alleged in the pleadings in any action or matter of law, the same shall be taken as admitted for the purpose of said action or matter, unless the same shall be denied by the next succeeding pleading of the opposite party or parties." Code Pub.Gen.Laws 1888, art 75, § 23, subsec. 108. The words, "the same shall be taken as admitted for the purpose of said action or matter," refer to the allegations of "partnership of any parties," etc., the incorporation of any alleged corporation, and "the execution of any written instrument," alleged in the pleadings. The failure to deny any of these in the next succeeding pleading, operates as an admission against the opposite party. In Banks v. McCosker, 82 Md. 525, 34 A. 541, 51 Am.St.Rep. 478,

this court, having this section of the Code under consideration, said: "We think it very clear that the legal effect and meaning of the statute is that the next succeeding pleading must in terms deny the signatures of the maker and payee as well, and we do not think the general issue is such a denial as the law contemplates. Before the passage of Acts 1888, p. 390, c. 248 [of which the provision in the Code is a codification], under issue joined on the general issue plea, the plaintiff had the burden cast upon him to establish the due execution of the note sued upon. Such being the case, what possible purpose could the Legislature have had in the passage of the act in question, if not to relieve the plaintiff from the burden of proving the partnership of parties, the incorporation of an alleged corporation, or the execution of any written instrument filed in the case or alleged in the pleadings." The failure of the appellee to make denial of the execution of the contract as set out in the declaration had the effect only of relieving the appellant of proving it; but it did not admit that Rogers, Holloway & Co. were the agents of the appellees, with authority to bind them, as charged in the narr. That was put in issue by the pleas, and was open for proof as any other fact that had been alleged.

It was also contended that the third plea, to the effect that the contract was obtained by fraud, being a plea of confession and avoidance, admits all the facts upon which the making of the contract must depend, and therefore estops the defendant from thereafter denying them. This plea by implication, it is true, does admit the contract, but solely for the purpose of alleging the special defense, viz., that the alleged contract was obtained by fraud. But it does not refer to the matters set up by the other pleas, and "cannot be taken advantage of to prove or disprove the issue presented in his other pleas." In the case of Kirk v. Nowill, 1 Term R. 115, where this was attempted, Buller, J., said "There never was such an idea before, that one plea might be supported by what is contained in another. Each plea must stand or fall by itself. They are as unconnected as if they were on separate records." And in Harrington v. Macmorris, 5 Taunton, 228, it was held "that the defendant's language in one plea cannot be used to disprove another plea, as in the familiar instance I have given of trespass, and not guilty and a justification pleaded, where the justification would certainly, if admissible, prove the act." See 16 Enc.Pl. & Prac. p. 562, note 1, where many American cases to the same effect are cited. The main question before the trial court was whether there was evidence from which the jury could find that Rogers, Holloway & Co. were the agents of the appellant and authorized to bind it in the contract set out in the narr. The character of the evidence upon which the appellant relies for this was for the most part circumstantial, consisting of implications properly inferable, as he claims, from his dealings with Rogers, Holloway & Co. and from the acts and declarations of the president of the company. It is not contended that the appellant or his general manager, prior to or on the 5th of May, the time of the making of the contract, had any reason to believe from the ordinary course of business of the appellee that Rogers & Holloway were in fact the agent of the latter, or had been held out to them as such, except as hereinafter will be stated. Both Fifer and Dietrich admit that up to that time they did not know Rogers and had no knowledge of the Clearfield Company. So that the question is reduced to the following inquiries: (1) Were Rogers, Holloway & Co. in fact the agents of the appellee, authorized to sell its coal,...