Leffler v. Allard

• Decision Date: 09 July 1862
• Parties: GEORGE R. H. LEFFLER, garnishee of JOHN LEVI, v. JOSEPH ALLARD.
• Court: Maryland Court of Appeals

18 Md. 545

GEORGE R. H. LEFFLER, garnishee of JOHN LEVI, v. JOSEPH ALLARD.

Court of Appeals of Maryland.

July 9, 1862

Where testimony, offered by the plaintiff, was objected to, but admitted by the court, if the plaintiff did not afterwards avail himself of the decision of the court, but proved the same facts by other evidence, the defendant was not injured by the ruling, even if erroneous.

A plaintiff suing for work, in repairing a house, done under a contract, and also for extra work, having proved the work under the contract, may prove that certain portions of the whole work done was extra work, by a sworn measurer, to whom the work, claimed to be extra work, was pointed out by the plaintiff.

Evidence of conversations between the defendant and a party to whom he had mortgaged the property, to show the consideration for which the mortgage was given, held subsequent to the doing of the work by the plaintiff, and not in his presence, are not admissible in evidence as against him.

Declarations of a party showing that he claimed the funds attached in the hands of the garnishee, are not admissible in evidence as against the plaintiff, nor is such a party a competent witness for the garnishee, because of his interest in the result of the suit.

APPEAL from the Court of Common Pleas.

Attachment on warrant, issued October 26th, 1855, at the instance of the appellee, to affect the rights and credits of John Levi, a resident of Texas, and laid in the hands of Leffler, January 4th, 1856. The cause of action, on which the attachment issued, was a carpenter's bill for work done by the plaintiff in repairing a house and premises belonging to Levi, on Barre street, in Baltimore, a part of which was done under a contract between the parties, dated July 26th, 1855 and the balance for extra work done on the same premises. The contract specifies the work to be done under it, for $455, and the bill for extra work amounted to $115.59, making, (after deducting a credit of $150,) the plaintiff's claim $420.59. The garnishee pleaded nulla bona. In answer to the interrogatories he stated, that before the institution of this suit he purchased from R. W. Raisin a mortgage on the premises, to secure a claim of $1000, and did not retain any money to pay the plaintiff, but did retain $420 of the purchase money, to await the result of the claim of Allard vs. Levi, upon a lien filed against the property, and agreed to pay interest on this sum of money until it was paid over; that in case the lien was defeated, the money was to be paid to Raisin, but in case the property was responsible, then to be used by him in clearing off the title, and that he gave an agreement in writing to that effect to Raisin, and that this amount is still in his hands. The case was tried November 14th, 1856.

1 st Exception: The plaintiff proved the doing of the work under the contract, (which was produced, and its execution proved,) between him and Levi, and also proved extra carpenter and other work done on the house, as set forth in the bill for extra work, filed with the claim, upon which the attachment issued. The plaintiff then proved by Mr Seacomb, that he, in company with Wm. Q. Caldwell, went upon the premises and measured certain work pointed out by the plaintiff, and that the work and materials so pointed out and measured, amounted to $116.04, as per measurer's bill. The plaintiff offered at the same time to prove that the items in the measurer's bill were the extra work above proved, to which testimony the defendant objected, but the court (MARSHALL, J.) overruled the objection, and to this ruling the defendant excepted.

2 nd Exception: The plaintiff then proved by another witness, that he, the plaintiff, called upon Levi with a bill, after the work was done, and Levi expressed his satisfaction with the work, and promised to pay the bill in the month of October ensuing. The plaintiff also proved by Watson, that he, witness, was employed by Raisin to do work upon the house of Levi, and Raisin promised to pay his bill as soon as he could raise money upon a mortgage given by Levi to him, for the purpose of raising money to pay off the claims on the property, and finally did pay witness part of his bill, but said he could not pay Allard's bill, because Leffler had retained that amount in his hands to meet Allard's lien, and that witness received a small portion of his bill from Raisin, on the 30th of October 1855. The plaintiff further proved by Baughman, that he was employed by Levi, in Raisin's presence and in Raisin's office, to do certain work upon Levi's house, and that after the completion thereof he called upon Raisin, who promised to pay him as soon as he could raise the money out of a mortgage which Levi had given for the purpose of paying for the work done on the property, Raisin, at the same time, saying, that he had received only $175 from Leffler, and that Leffler had retained the amount of Allard's claim, and that he, witness, finally received part of his claim, and part remains unpaid. The plaintiff then offered and read the answers of Leffler to the interrogatories propounded to him, and here closed his case.

The defendant then proved the payment of four tax bills on the property, being State and city taxes for the years 1852 to 1855, inclusive. He then offered in evidence a mortgage of the premises in question and other property, from Levi to Cox, dated July 27th, 1855, to secure the payment of $1000, also a mortgage of the same property from Levi to Raisin, dated October 22nd, 1855, to secure the payment of $1000, and an assignment of this latter mortgage from Raisin to Leffler, dated October 24th, 1855, for the consideration of $1000. The defendant then proved by Moore, that he knew of services rendered by Raisin to Levi, in the selling of $16,000 or $17,000 worth of Texas lands, and that his commissions were from $1600 to $1800. The defendant then offered to prove by this witness, that from the conversation between Raisin and Levi, preliminary to the execution of the mortgage from Levi to Raisin, he had learned that this mortgage was to be given to secure a portion of this indebtedness. To this offer the plaintiff objected, and the court sustained the objection, and to this ruling the defendant excepted.

3 rd Exception: The defendant then proved by Severson, that Levi was to pay Raisin ten per cent. on the sales of said lands, and then offered Raisin as a witness in the cause, but to this the plaintiff objected, on the ground that the counsel for Raisin, in their opening statement, and in reply to a question from the court, had stated that the amount in controversy belonged to Raisin, and that he was directly interested in the result of this suit. The court sustained the objection, unless the witness, on his own voir dire, would say, he had no interest in the result, which the witness declined to do, and to this ruling the defendant excepted.

The verdict was in favor of the plaintiff for $446.67, with interest, and from the judgment of condemnation thereon, the garnishee appealed.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.

Jas. Malcolm, for the appellant:

1st. The testimony offered by the plaintiff and set forth in the first exception, was inadmissible, because the measurement was made without notice to the appellant, and therefore liable to the...