Koch v. Wimbrow Bros.

Decision Date29 June 1909
Citation73 A. 896,111 Md. 21
PartiesKOCH v. WIMBROW BROS.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Worcester County; Chas. F. Holland Judge.

Action by Henry Koch against Wimbrow Bros. Judgment for defendants and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and PEARCE, SCHMUCKER, BURKE, WORTHINGTON and THOMAS, JJ.

Adial P. Barnes, for appellant.

John H Handy, for appellees.

BOYD C.J.

This is an appeal from a judgment rendered in favor of the defendants (appellees) in a suit by the appellant for an alleged breach of contract to deliver to him 1,000 cases of tomatoes, each case containing two dozen cans three pounds standard tomatoes. The terms of sale were "77 1/2 c. per doz. f. o. b. Factory, 13 1/2 c. rate of freight guaranteed to Newark, N. J., goods to be of packing of 1906; shipment in early part of canning season; Swells guaranteed to July 1, 1907, packers labels. One car to be shipped as soon as packed and the other later. Terms cash, less 1 1/2 c. in 10 das." The sale note is dated June 2, 1906.

There were five common counts and a special count in the declaration. To the first five counts the general issue pleas were filed, and to the sixth the general issue plea, one alleging that the plaintiff had countermanded the order, and another that the plaintiff refused to accept the goods when offered by the defendants according to the terms of the contract. The plaintiff joined issue on the other pleas, and traversed the second and the third filed to the sixth count. A note in the record shows that the defendants joined issue on them, but the appellant complains that that entry was made after the appeal was entered--under a nunc pro tunc order of the court. As there is nothing in the record showing any exception or objection to that action of the court, or any proceeding taken which would authorize us to review such action, it is unnecessary to discuss it, but we will add that in Greff v. Fickey, 30 Md. 75, it was held, where a writ of diminution had been issued for the purpose of having some alleged errors corrected, that it was "the duty of a court when satisfied, either from its own knowledge of what actually occurred in a cause or from evidence adduced, that the docket entries as made by the clerk are erroneous or incomplete, to have them corrected, so that a full, true, and perfect transcript of the whole proceedings as they actually occurred in the progress of the cause may be sent to the appellate court in obedience to the writ of diminution." In that case, as in this, the term in which the proceedings had occurred had passed, and as it was not only within the power, but the "plain duty," of the court to have the errors corrected, if satisfied there were errors in the docket entries, the appellant would have no ground for complaint, even if he had properly brought the question here for review. As this record had not yet been transmitted to this court, the correction was not made under a writ of diminution, but, as it was distinctly held in Greff v. Fickey that it could have been, of course, the appellant was not injured by it being done as it was, instead of the appellees waiting until the record came to this court and then applying for the writ. If the issue was not in fact joined, and the plaintiff was injured thereby, it should have been brought to the attention of the court by some appropriate proceeding.

The first exception was taken to the ruling of the court in excluding from the jury the portion of the deposition of the plaintiff which gave the terms of the contract, the affidavit of the stenographer who took the deposition, and the certificate of the notary public before whom it was taken that the contract was offered in evidence and filed as an exhibit, but had been lost. Without stopping to consider the proper way to establish the contents of an exhibit filed with depositions, which is afterwards lost and not returned with the depositions, it is not perceived how the appellant was injured. The appellant called one of the appellees as a witness and a duplicate of the contract which was held by the appellees was admitted in evidence at the instance of the plaintiff, and there is nothing in the record from which we can see that the plaintiff was prejudiced by this action of the court. The contract was set out in the narr., the duplicate corresponds with it, and it was not denied by the defendants that it was the contract made by the parties. The part of the deposition which was excluded is not set out in the record, excepting by reference to it as "that part of the deposition of Mr. Koch which gave the terms of an alleged contract," which might indicate that the plaintiff had undertaken to give the terms of this written contract, but, however that may be, the contract is set out in full in the plaintiff's first prayer, which was granted, and the case was tried by both sides on the theory that that was the contract made between the parties.

A letter from Mr. Greenfield, attorney for the plaintiff, was offered by the defendant, to which "the plaintiff objected on the ground of its incompetency and irrelevancy under the issues in this cause." The court overruled the objection, and permitted it to be read and used as evidence. That ruling is presented by the second bill of exceptions and we find no reversible error in it. The letter began by saying that the plaintiff had referred to him the communications of the defendants addressed to the plaintiff. If admissible for no other reason, it was to show that he said: "I note that in one of your letters you state that he canceled the order. This my client emphatically denies. He asked you to hold off the shipment for a short time, and I have your communication to him in which you agree to do so and to ship when required. Therefore there can have been no cancellation of the order, and, if you still refuse to ship, we will hold you responsible." The plaintiff had offered in evidence a letter he had sent to the defendants, dated August 22, 1906, as follows: "Gentlemen: We have bought one thousand cases of tomatoes from you. Kindly do not ship them until we want them. We will let you know when to ship them." Also one dated September 24, 1906, which read: "Kindly ship us one car of tomatoes and oblige." He also offered a reply to that letter dated September 25, 1906, in which the defendant says: "Your favor...

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