Gottlieb v. Fred W. Wolf Co.

• Decision Date: 17 December 1891
• Citation: 23 A. 198,75 Md. 126
• Parties: GOTTLIEB v. FRED. W. WOLF CO.
• Court: Maryland Court of Appeals

23 A. 198

75 Md. 126

GOTTLIEB v. FRED. W. WOLF CO.

Court of Appeals of Maryland

December 17, 1891

Appeal from Baltimore court of common pleas.

This was an action by Frederick H. Gottlieb against the Fred. W Wolf Company to recover commissions for selling an ice-machine. There was judgment for defendant, and plaintiff appeals. Reversed.

Argued before ALVEY, C.J., and IRVING, MILLER, MCSHERRY, and FOWLER JJ.

Thos. R. Clendinen, for appellant.

Fisher, Bruce & Fisher, for appellee.

IRVING J.

Section 170 of article 4 of the Public Local Laws of the city of Baltimore, subtitle "Courts," provides: "Bills of exceptions may be signed in any cause pending in any of said courts [the court of common pleas, etc.] at any time within thirty days from the rendition of the verdict of the jury or the findings of the court upon the issues of fact in said cause, but not thereafter, unless the time for signing said bill of exceptions shall have been previously extended by order of court or by consent of parties." The motion to dismiss the appeal in this case rests on the contention that the bill of exceptions was not signed within a period of legal extension by order of court, as required by this law. On the 23d day of April, 1891, before the expiration of 30 days from the date of the verdict, the court passed an order extending the time for signing the bill of exceptions "to" the 23d day of May, 1891, and on the 23d day of May, 1891, the court again extended the time for signing the exceptions to 23d of June, 1891. On the 19th of June, 1891, the court further extended the time till the 29th of June, inclusive, and on that day it again extended the time until 16th of July, 1891, inclusive. On the 6th of July, 1891, the bill of exceptions was filed. The appellee contends that when the order of the 23d day of May, 1891, extending the time for signing the exceptions until the 23d of June was passed, "the life of the preceding order had expired;" and the court could not further extend the time. The order of the 23d of April extended the time "to" 23d of May; and whether the contention of the appellee is right depends on the proper construction of the word "to" in the connection in which it is used, namely, whether it is exclusive or inclusive of the 23d day of May. If the bill of exceptions could have been properly signed on the 23d day of May, of course the order extending the time for signing the same was properly and legally passed. The words "to," "till," and "until" are synonymous, and are sometimes ambiguous and equivocal in the particular connection in which they occur, and are therefore construed as exclusive or inclusive, according as the subject-matter about which they are used may show the inteution, in using the words, to have been. This was the rule of construction which was applied in Bellhouse v. Mellor, 4 Hurl. & N. 120. In that case an order was obtained protecting an insolvent debtor from execution "until the 29th of July next," and the court held that the order gave protection on the 29th of July, and the word "until" was therefore construed inclusively. In Isaacs v. Insurance Co., L. R. 5 Exch. 296, 299, 300, the ruling in the Bellhouse Case, 4 Hurl. & N. 120, was approved and followed, and an insurance policy which protected against fire until the 14th of August was held to cover a loss by fire on the 14th of August; the word "until" in that case being regarded as being intended to include the 14th of August. In King v. Stevens, 5 East, 244 et seq., Lord ELLENBOROUGH held the same rule of construction applicable to the word "until" in an indictment. He said that "the words 'to and until' may be either inclusive or exclusive, according to the manifest intention of the person using them;" and as the "framer of the information" evidently intended the word "until" to include the day named, it was held as used inclusively. In Thomas v. Douglass, 2 Johns. Cas. 225, the supreme court of New York held the word "until" was used inclusively in an order of the court enlarging the time to plead until the second day of next term, and decided that a judgment for default rendered on the second day of the term was entered in error because the party was under the order entitled to the whole of the second day to plead. In several of these cases the question has been fully and well reasoned, and we approve both the reasoning and the conclusions reached. Very many other cases of like character and effect could be cited. Some have been cited by appellee where the contrary view has been taken, and especially some in other states, where the subject-matter was a bill of exception; but we think the cases on which we rely are better reasoned and the conclusions reached more in harmony with justice and right, which always seeks to promote intention rather than defeat it by being too technical. We may cite Hazlehurst v. Freeman, 52 Ga. 244, 245; Kendall v. Kingsley, 120 Mass. 94; Ackland v. Lutley, 9 Adol. & E. 879; Bunce v. Reed, 16 Barb. 351; Dakins v. Wagner, 3 Dowl. 535,--in further support of our view. Walsh v. Boyle, 30 Md. 266; Calvert v. Williams, 34 Md. 672; and Steuart v. Meyer, 54 Md. 464, 465,--tend to support the view we take. We are all clearly of opinion that in passing the order of 23d day of May, 1891, the court acted within the authority of the statute. Upon that day a bill of exceptions might properly have been signed, and, if so, the time for such signing could properly be extended. That the court did so extend the time, notwithstanding the very contention now made here, shows conclusively how the court understood their own order, and in what sense the word "to" was used in it. It follows from what we have said that the motion to dismiss must be overruled.

This suit was brought by the appellant to recover commissions for selling an ice-machine for the appellee. It was brought as an attachment, and this proceeding is on the short-note case the declaration in which is on the common counts and a special claim for commissions for selling a machine. The facts of the case are substantially as follows: Frederic W. Wolf, manufacturing ice-machines in Chicago, in 1885, made the appellant his agent for selling his machines in the city of Baltimore upon terms about which they differ in their statements to some extent, but not involved in the inquiries we are to make on this appeal. Afterwards, in March, 1887, this appellee was incorporated, and thereafter the business was conducted as a corporation, and the appellant was...