Hearn v. Cullin

• Court: Maryland Supreme Court
• Writing for the Court: BARTOL, C.J., delivered the opinion of the Court.
• Citation: Hearn v. Cullin, 54 Md. 533 (Md. 1880)
• Decision Date: 28 July 1880
• Parties: JONATHAN A. HEARN v. WILLIAM A. CULLIN.

54 Md. 533

JONATHAN A. HEARN v. WILLIAM A. CULLIN.

Court of Appeals of Maryland

July 28, 1880

APPEAL from the Circuit Court for Somerset County.

The case is stated in the opinion of the Court.

First Exception.--The defendant offered to prove that he sold the said vessel to Lewis on a credit of one and two years from the time of said sale, and that neither of said payments had become due and payable at the time this suit was brought, and that in fact no part of the said purchase money from Lewis had been received by the defendant to which last offered evidence plaintiff objected. The defendant's counsel then declared that they proposed to follow up the said evidence objected to, with further proof that after the said purchase money became due from Lewis, it was not then paid, nor at any time afterwards; that said Lewis was unable to pay the same, and that the defendant had to take back the said vessel from him; that he, the defendant, still has her. The objection of the plaintiff to the admissibility of the said evidence as offered, or as proposed to be followed up, being insisted on by the plaintiff, the Court, (WILSON, J.,) sustained the said objection of the plaintiff, and refused to allow the evidence as offered, and also as proposed to be followed up, to go to the jury, but ruled that the defendant was at liberty to prove that he had received no part of the purchase money of the said Lewis. The defendant excepted.

Second Exception.--The defendant's counsel then recalled the defendant, who testified that he never received from Wingate Lewis any part of the purchase money of the said vessel "Anna Willets," sold to him by the defendant. The defendant's counsel then proposed to offer evidence, by the defendant himself, that at the time he sold the said vessel to Wingate Lewis, he, Lewis, was in good credit, but before the money became payable the said Lewis became insolvent, and was wholly unable to pay for the said vessel, and did not pay for her, and that the defendant for that reason was obliged to take her back, and he still held her. To the admissibility of the said evidence so offered the plaintiff objected, and the Court sustained the objection, and refused to permit the said evidence to go to the jury; but the Court was of opinion that the defendant was at liberty to prove that he had received no part of the purchase money of said vessel from said Lewis. The defendant excepted.

Third Exception.--The plaintiff offered the four following prayers:--

1. That if the jury find that on or about the month of September, 1876, the defendant agreed to sell a certain vessel called "The Anna Willets," and the plaintiff agreed to purchase the same for the sum of $455.20, including store account due by the plaintiff to the defendant, if they shall find said account, and that in pursuance of said contract the said plaintiff was placed in possession of the said vessel by the said defendant, and paid to the defendant $150, on account of purchase money thereof, and afterwards the said defendant bargained with one Wingate Lewis, for the sale of the said vessel, and with the consent of the plaintiff, and on the promise of the defendant to the plaintiff to do what was fair and right, defendant sold said vessel to the said Lewis at and for the sum of $500, then the jury must infer a promise by the said defendant to account for the said sale to and with the said plaintiff.

2. That if the jury find that on or about the month of September, 1876, the defendant agreed to sell a certain vessel called "The Anna Willets," and the plaintiff agreed to purchase the same for the sum of $455.20, including store account due by the plaintiff to the defendant, if they shall find said account, and that in pursuance of said contract the said plaintiff was placed in possession of the said vessel by the said defendant, and paid to the defendant $150, on account of purchase money thereof, and afterwards the said defendant bargained with one Wingate Lewis for the sale of the said vessel, and with the consent of the plaintiff, and on the promise of the defendant to the plaintiff, that the said defendant would settle satisfactorily, the defendant sold the said vessel to the said Lewis, at and for the sum of $500, then the jury must infer a promise by the said defendant to account for the said sale to and with the said plaintiff.

3. That if the jury find the facts stated in the plaintiff's first prayer, or shall find the facts contained in the plaintiff's second prayer, and shall also find that after the said sale by the defendant to the said Wingate Lewis, the plaintiff called on the defendant to account with him, and settle for the said vessel, and the defendant refused so to do, and has never accounted with the plaintiff and settled with him for the said sale, then the plaintiff is entitled to recover under the eighth count of the declaration, and the damages must be for the amount for which the said defendant sold the said vessel to the said Lewis, less the amount due by the said plaintiff to the defendant on account of purchase of said boat, and the amount due on the several bills, that the jury may find under instructions contained in plaintiff's fourth prayer, with interest from the day of the said sale to the said Lewis.

4. That the defendant, under the plea of set-off, cannot recover for such bills of the plaintiff as were paid by the defendant, (if they shall find any such bills were paid,) unless they shall find that the plaintiff impliedly or expressly requested the defendant to pay the said bills, or was constrained to pay them as bills against said vessel.

And the defendant offered the seven following prayers:

1. That the plaintiff is not entitled to recover the money paid by the plaintiff to the defendant, on the contract for the purchase of the "Anna Willets," (if the jury from the evidence shall believe that any such contract was made between the plaintiff and defendant, and that any money was paid by plaintiff to defendant thereunder,) under the pleadings and evidence in this cause, because there is no evidence of the rescission of the contract for the sale of the sloop "Anna Willets," and without which evidence the plaintiff is not entitled to receive back any part of the money so paid by the plaintiff on the contract aforesaid, for the purchase of the said sloop.

2. That to enable the plaintiff to recover on the seventh and eighth counts of his declaration, he must prove to the satisfaction of the jury that the contract for the sale of the sloop "Anna Willets," between the plaintiff and the defendant, as he has alleged it in the said counts severally, and if from the evidence they find that as conditions and parts of the said contract, the purchase money was to be paid by the plaintiff during or at the end of the oyster season, then current, and the plaintiff was to make no bills on the said boat without the defendant's consent, they cannot find that the said contract is as is alleged in the said counts.

3. That if the jury find the defendant sold the "Anna Willets," to Wingate Lewis, with the consent of the plaintiff, but never received any part of the price of the said vessel from the said Lewis, the plaintiff is not entitled to a verdict against the defendant on the first, second, third, fourth, fifth, sixth and seventh counts in the plaintiff's declaration, on the said counts their verdict should be for the defendant.

4. That although the jury should find from the evidence in the cause that the defendant sold the sloop "Anna Willets," to Wingate Lewis, with the consent of the plaintiff, and promised to account with the plaintiff for the price, yet if they also find from the evidence that he never received the price, or any part of it from said Lewis, their verdict must be for the defendant on the eighth count of the plaintiff's declaration.

5. That although the jury should find from the evidence that the defendant sold and delivered the sloop "Anna Willets," mentioned in the declaration, to Wingate Lewis, yet the plaintiff is not entitled to recover in this form of action and under the pleadings in this cause, unless they also find that the defendant undertook and promised to account with and pay the plaintiff the proceeds of the said sale.

6. That if the jury shall be of opinion that the plaintiff is entitled, under the pleadings and issues in this cause, to recover from the defendant on account of the sale of the said sloop to Wingate Lewis, they should, in making up their verdict, take into consideration whatever amounts or sums of money they may, from the evidence in the cause, find to be due from the plaintiff to the defendant on account of the original purchase of the said vessel by the plaintiff from the defendant, or any of the other claims offered in evidence, and their verdict must be for the defendant, unless they find that the defendant is indebted to the plaintiff in a greater amount, in which case their verdict should be only for the excess of the demand of the plaintiff over that of the defendant.

7. That if the jury shall find from the evidence in this cause that the plaintiff and defendant agreed to refer the matters in controversy between them to arbitration; that the plaintiff and defendant met together in the presence of said arbitrators; that the defendant said then and there that he would make a statement, and if he was wrong the plaintiff should correct any misstatement made by him; that the defendant then and there read a statement of his claims against the plaintiff, item by...