Flickinger v. Wagner

• Decision Date: 13 June 1877
• Parties: GEORGE FLICKINGER v. HARRISON WAGNER.
• Court: Maryland Court of Appeals

46 Md. 580

GEORGE FLICKINGER v. HARRISON WAGNER.

Court of Appeals of Maryland

June 13, 1877

APPEAL from the Circuit Court for Frederick County.

This is an action for malicious prosecution brought by the appellant against the appellee, the nature of which is stated in the opinion of the Court.

First Exception.--Stated in the opinion of the Court.

Second Exception.--The defendant proved by William H. Wagner, his brother, that the witness and the plaintiff made a settlement in June, 1872; that plaintiff informed witness that this was all the accounts he had against defendant; that after such settlement the witness communicated to the defendant that he, the witness, had settled all claims whatever which plaintiff had against the defendant; that this communication was made the day after the settlement was made, or on the same day thereof; that plaintiff's account exhibited on that occasion and settled, was for 15,000 bricks purchased by the defendant from the plaintiff at $8.25 per thousand, making $123 75 that a note of the plaintiff in favor of Enoch J. Waltz entered into said settlement; that there was due on this note, which was held by defendant against plaintiff with interest, about $86 00; that this $86.00 was credited on the back of plaintiff's account, and the balance of about $37 due to plaintiff on the brick account was credited on a note which witness held against the plaintiff, called the "Trimmer Note," that these two credits paid plaintiff's account as presented in full; that said Waltz note was not surrendered to said plaintiff, but remained in the hands of the defendant.

Upon cross-examination, the plaintiff's counsel asked the witness if there was anything due upon said note; which question being objected to by defendant's counsel, the counsel for plaintiff stated to the Court that they expected to prove facts and circumstances from which the jury might believe that there was no such settlement as that testified to by the witness; that on the 16th day of August immediately following this supposed settlement, there was a meeting of the creditors of George Flickinger before the Register in Bankruptcy in Woodsboro', at which an assignee of the estate of George Flickinger, the plaintiff, was to be voted for; that the witness was a candidate for the position of such assignee; that the defendant, Harrison Wagner, the brother of the witness, attended that meeting and produced this Waltz note before the register, and proved it against the estate of said Flickinger, bankrupt, the plaintiff, and offered to vote on it for the witness for assignee of said bankrupt's estate but the Court (BOUIC and LYNCH, J.,) sustained the objection of defendant's counsel and refused to permit said question to be asked the witness. The plaintiff excepted.

Third Exception.--The said witness further, upon cross-examination, testified, that he had not solicited any one to vote for him as assignee of the estate of George Flickinger, bankrupt, and that he was not present at the meeting, but had heard that some few persons had voted for him. The plaintiff's counsel then asked the witness "Did Harrison Wagner, the defendant, vote for you as assignee?" but the defendant's counsel objected to said question being answered, and the Court sustained the objection, and refused to permit said question to be answered. The plaintiff excepted.

Fourth Exception.--The plaintiff's counsel, further, on cross-examination of said witness, asked him if the plaintiff, Flickinger, was indebted to the defendant, Wagner, at the time of the trial before Justice Koontz; which question was objected to by defendant's counsel, and the Court refused to permit the witness to answer the same. The plaintiff excepted.

Fifth Exception.--The plaintiff, further, on cross-examination, asked said witness if the Waltz note was cancelled by the credit of $86 on the brick account, but upon objection by the defendant's counsel, the Court refused to permit said question to be answered. The plaintiff excepted.

Sixth Exception.--The plaintiff, further, on cross-examination, asked said witness whether or not the Waltz note, after the settlement spoken of by him, belonged to George Flickinger, but upon objection by the defendant's counsel, the Court refused to permit said question to be answered. The plaintiff excepted.

Seventh Exception.--The defendant, to further maintain the issues joined on his part, proved by Enoch J. Waltz, that he, the said witness, repeated to defendant, a conversation which he had with the plaintiff in 1873, in which plaintiff said to witness, that all accounts were settled between the plaintiff and the defendant; and further proved by Samuel Murphy, that he had a wagon of Flickinger in use for about half a day or a little longer on his own account; hired it himself and for himself; that he used it to haul brick for Harrison Wagner; that he got the wagon from Flickinger, and told Flickinger that he wanted it to haul brick for Harrison Wagner; the defendant's counsel then asked witness to state under what terms or circumstances he was hauling bricks for Wagner; but plaintiff's counsel objected to said question being answered, unless it was proposed by defendant, to follow it up with proof that Flickinger was acquainted with the terms or circumstances under which witness was hauling bricks for Wagner, and that the fact of Flickinger's knowledge thereof was communicated to said Wagner; but the Court overruled said objection, and permitted said question to be asked and answered; to which question the witness replied, that he was hauling bricks under a contract with Wagner, and that witness was to furnish the means for such hauling. The plaintiff excepted.

Eighth Exception.--The defendant then proved by Columbus Welker, that he was present at the trial before Justice Koontz, and that the plaintiff there swore that Harrison Wagner came after the cart, and that Flickinger helped him to hitch it up, and that Harrison Wagner took it away in person.

The defendant's counsel then asked the witness, "what did Flickinger say, if anything, with reference to anybody's being there with Wagner?" to which the plaintiff, before said question was answered, objected as leading, but the Court overruled his objection, and permitted said question to be answered by witness, when witness replied, "I have no knowledge of him making mention of any one else; my recollection is rather clear on the subject of no one else being with Wagner." The plaintiff excepted.

Ninth Exception.--The defendant then produced other evidence tending to show that the defendant did not have the plaintiff's cart during the time of the digging and hauling out of defendant's cellar, and then proved by Harrison Wagner, the defendant, that he never at any time had the use of plaintiff's cart or wagon. The defendant's counsel then asked the witness to state what contract he had with Samuel Murphy about the hauling of brick for him, to which the plaintiff objected, unless defendant proposed to follow it up by proof that plaintiff knew of said contract, and that his knowledge thereof was known to said defendant, but the Court overruled said objection and permitted witness to answer said question; when the witness said in answer thereto, that said Murphy contracted with witness to haul the brick, and that Murphy was to furnish at his own expense, the means of such hauling. The plaintiff excepted.

Tenth Exception.--The defendant's counsel then asked said witness "what was your motive in making the charge of perjury against the plaintiff?" to which the plaintiff objected, but the Court overruled the objection, and permitted the question to be asked and answered; when the witness in answer thereto, said that his motive was justice to himself and to society. The plaintiff excepted.

Eleventh Exception.--The said witness further testified in behalf of defendant, that the plaintiff in the trial before Justice Koontz, testified that the witness (H. Wagner,) came alone for the cart and drove it away alone. The plaintiff's counsel then, upon cross-examination, asked the witness "what was the matter in controversy between you and the assignee of Flickinger in the trial before Justice Koontz?" but the defendant's counsel objected to said question being answered, and the Court sustained said objection, and refused to permit the witness to answer said question. The plaintiff excepted.

Twelfth Exception.--The plaintiff's counsel further, upon cross-examination of said witness, asked, "was there any controversy in the trial before Justice Koontz as to whether you went for the cart by yourself, or went for it in company with somebody else?"

To which the defendant's counsel objected, and the Court sustained said objection, and refused to permit the witness to answer said question. The plaintiff excepted.

Thirteenth Exception.--After further evidence offered on the part of the plaintiff and defendant, the defendant offered the eighteen following prayers:

1. The defendant, by his counsel, prays the Court to instruct the jury upon the evidence, that if the jury shall believe from the evidence that Dr. W. H. Wagner and plaintiff made a settlement in June, 1872; that the use of the cart for two weeks and the wagon for one day, spoken of by plaintiff in his evidence, had transpired before such settlement, if the jury shall so find that after such settlement Dr. W. H Wagner communicated to defendant that he, Dr. W. H. Wagner, had settled all claims whatever which plaintiff had against him, defendant; that this communication was made in 1872; if the jury shall so find, that in 1873 a certain Enoch Waltz repeated to defendant that he, Waltz, had had a conversation with plaintiff, in which plaintiff admitted that...