J. A. Laporte Corp. v. Pennsylvaniadixie Cement Corp., 24.

• Court: Maryland Supreme Court
• Writing for the Court: PER CURIAM
• Citation: J. A. Laporte Corp. v. Pennsylvaniadixie Cement Corp., 168 A. 844 (Md. 1933)
• Decision Date: 31 January 1933
• Docket Number: No. 24.,24.
• Parties: J. A. LAPORTE CORPORATION v. PENNSYLVANIADIXIE CEMENT CORPORATION.

168 A. 844

J. A. LAPORTE CORPORATION

v. PENNSYLVANIADIXIE CEMENT CORPORATION.

No. 24.

Court of Appeals of Maryland.

Jan. Term, 1933.

Appeal from Superior Court of Baltimore City; Eugene O'Dunne, Judge.

On motion for reargument.

Motion overruled.

For former opinion, see 164 Md. 642, 165 A. 195.

Argued before BOND, C. J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Walter L. Clark and Roszel C. Thomsen, both of Baltimore, for appellant.

John Philip Hill and Richard F. Cleveland, both of Baltimore (Charles Carroll, Jr., Semmes, Bowen'& Semmes, and Hill, Ross & Hill, all of Baltimore, on the brief), for appellee.

PER CURIAM.

On motion for a reargument of this case it is disputed whether the objection against enforcement of the contract because of the prohibition of the statute of frauds was raised and pressed at the trial in argument on the defendant's prayer for direction of a verdict in its favor, and the dispute is one which this court, in the absence of any reference to the objection in the record, cannot decide. But the appellant contends that the statute and rule restricting review on appeals to questions which plainly appear to have been decided below (Code, art. 5, § 10) are not regularly applied to exclude from consideration new questions which might control the decision on such a prayer, and the court is referred to some recent cases in which points of law not raised and decided below have controlled decisions of this court on prayers for direction of verdicts. More closely relevant are two other eases which have come to the attention of the court, Hamilton v. Thirston, 93 Md. 213, 48 A. 709, and Morgart v. Smouse, 103 Md. 463, 63 A. 1070, 115 Am. St. Rep. 367, 7 Ann. Cas. 1140, in both of which the unenforceability of contracts for want of writing in compliance with the statute of frauds was held to require reversal of judgments because prayers for directed verdicts had been refused, although no objections had been made below on the statute.

It is true that the section of the Code has not been applied to require that every contention of law be specified in the record in some manner, and there has been no formulation of a rule for distinguishing in all instances between questions which need appear to have been so raised below, and those which need not. On the one hand, objections to form and method, and objections to evidence, have ordinarily been held subject to the statutory requirement, but there are exceptions to this statement in decisions that the requirement does not apply to questions raised on demurrers or motions, in arrest of judgment. State, Use of President, etc., of Charlotte Hall School v. Greenwell, 4 Gill & J. 407; Price v. Thomas, 4 Md. 514; Wolfe v. Hauver, 1 Gill, 84, 92; Burgess v. State, Use of Skinner, 12 Gill & J. 65; Bullitt v. Musgrave, 3 Gill, 31. On the other hand, what may be regarded as reasons in support of a point, as distinguished from the point or question itself, need not appear stated in the record; this court will review a decision on the point without restriction to the reasons considered below. Sothoron v. Weems, 3 Gill & J. 435; Parker v. Sedwick, 4 Gill, 318. All questions necessarily raised by an instruction will, of course, be considered as having been before the trial court. Bullitt v. Musgrave, 3 Gill, 31; Edelen v. State, Use of Jackson, 4 Gill & J. 277.

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