Hoogewerff v. Flack
| Decision Date | 20 June 1905 |
| Citation | 61 A. 184,101 Md. 371 |
| Parties | HOOGEWERFF v. FLACK. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; John J. Doblen, Judge.
Action by Frank H. Flack against Samuel E. Hoogewerff. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.
John I Donaldson, for appellant.
Richard B. Tippett & Bro., for appellee.
This case was instituted by the appellee against the appellant in the superior court of Baltimore City upon a declaration consisting of the common counts, and a special count as follows: "For that the defendant was and is a stockbroker, and on or about the ______ day of August, 1903 agreed with the plaintiff to purchase for and deliver to the plaintiff two hundred shares of the stock of the Amalgamated Copper Company at the price of $53 per share, and the plaintiff delivered to the defendant the sum of $5,800 with which to make said purchase, as part payment of the purchase price, to wit, $10,600, and the plaintiff stood and has always been ready and willing to turn over and deliver to the plaintiff the balance of the sum necessary to pay in full for said shares of stock, to wit, the sum of $4,800, upon their purchase by the defendant; but the plaintiff says that the defendant has neglected and refused to deliver to the plaintiff the shares of stock purchased or to be purchased by him, and has utterly failed to comply with his obligation under said contract, whereby the plaintiff has been much damaged, and claims $8,000 damages." The appellant pleaded non assumpsit and not indebted, and three additional pleas to the special count in the plaintiff's declaration. The first of these traversed the said count. The other two are summarized in the brief of the plaintiff as follows: In his replications filed thereto the appellee traversed these special pleas, and issue was joined thereon. The trial of the case resulted in a verdict and judgment against the appellant (defendant below), and he has brought this appeal.
The questions presented for decision here arise upon two exceptions; one relating to the action of the trial court in ruling upon the admissibility of evidence; the other, to the rulings upon the prayers.
There can be but little difficulty in disposing of the question raised by the first exception. It arose upon the offer in evidence by the plaintiff, in the course of the trial, of a ledger kept by the brokerage firm of E.N. Morison & Co., and certain accounts therein pertaining to dealings of the appellant (defendant below) with that firm. The appellant was being examined as a witness on his own behalf, and upon cross-examination frequent references were made by the examining counsel to the book in question. Before the conclusion of the cross-examination the same was suspended and a clerk in the employ of E.N. Morison & Co. was called by the appellee as a witness, with the view of laying a foundation for the offer in evidence by the appellee of this ledger and the accounts. This witness was asked: The record then states: "The plaintiff thereupon offered in evidence the ledger mentioned in evidence, and the following accounts therein." To this appellant objected, and his objection was overruled, and the evidence admitted. The witness then, upon cross-examination by appellant's counsel, was asked if he had anything to do with the making of entries in that book, and answered, "No"; that he might have put some entries in it when some of the other bookkeepers were sick, but it was not his regular work. He was asked further what he knew about the correctness of the book, and said he could only say the books were balanced up at certain periods, and they were proved; and then what he knew as to the correctness of the charges or the crediting of the various items between the two accounts of the appellant, and said that he knew nothing of that; that appellant may have given an order on one account, and it may have been credited on another; that, as far as that went, he did not recollect it, or he (appellant) might have told them "to put this on the wrong account"; he could not remember. It will be observed that the ledger in question and the entries therein were offered and admitted as original and substantive evidence of the facts indicated by these entries. The foregoing statement of the testimony preceding and introducing this offer of evidence is sufficient to make manifest the error of its admission. The entries in the ledger were not, or were not shown to be, original entries. The witness did not make them nor see them made, and expressly disclaimed any knowledge or recollection that would enable him to speak of their correctness, but, on the contrary, suggested how they might be inaccurate. The principles regulating the introduction of evidence of the character of that here in question, and determining its admissibility, have been so frequently explained and applied in our decisions, and are so familiar in the text-books, that it is unnecessary to restate them here. Their application in sustaining the view we here express in ruling upon the exception we are considering will be sufficiently enforced by a reference to the cases of Owings, etc., v. Low, 5 Gill & J. 134; Lewis v. Kramer, etc., 3 Md. 265; McCann v. Sloan, 25 Md. 575-588. We cannot regard the admission of this evidence as non-reversible error, as we understand the appellee to argue. It is very evident that the appellee thought that the entries in question afforded inferences going to the vital questions in the case, and, assuming them to have been properly in the case, they were, certainly, from the appellee's standpoint, not unimportant, in view of the issues that had been made up under the pleadings. The appellant questioned the accuracy of the entries--certainly did not admit that they correctly represented the facts. He explained how he was without efficient means of contradiction, because all of his own memoranda relating to the subject of the entries had been destroyed in the fire which had recently reduced to ruin a large section of the city of Baltimore. Under the circumstances, the appellant could properly insist that the evidence in question sought to be offered against him should be so offered under the safeguards which the law wisely provides shall attend the introduction of evidence of this character unless he had in some manner waived his right in this regard, or estopped himself from asserting it. It seems to be supposed that he waived this right because he had brought the book into court and submitted to be questioned in regard to it in the cross-examination. If he was responsible for the physical presence of the book in court, he did not offer it in evidence, and could not have done so, against objection, without laying a proper foundation therefor. In his examination in chief as a witness there was no attempt to use the book, nor any entry in it as evidence; and, as far as appears from the record, as soon as the offer was made to introduce the book and its entries as evidence per se the appellant's objection was made. It is further argued that appellant ought to be held as having waived objection to the admissibility of the evidence in question because of the reference to, and use made of, certain entries in the book in question by his counsel. But this was after the book had been admitted in evidence against the objection of the appellant, and was...
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