Long v. Buchanan

• Decision Date: 19 July 1867
• Citation: 27 Md. 502
• Parties: BENJAMIN LONG v. H. R. A. BUCHANAN.
• Court: Maryland Court of Appeals

27 Md. 502

BENJAMIN LONG v. H. R. A. BUCHANAN.

Court of Appeals of Maryland

July 19, 1867

APPEAL from the Circuit Court for Washington County.

This was an action of trespass quare clausum fregit, brought by the appellee against the appellant and Simon Long and Hamilton Downes. The declaration charged that the defendants broke and entered the plaintiff's close, and took and carried away a quantity of corn, the property of the plaintiff. The defendants pleaded several pleas, one of which justified the entry, &c., by the allegation of a sale of the corn by the plaintiff, and a license from her to enter for the purpose of removing it. The question raised by this plea was the only one discussed before this Court.

Exception: The plaintiff proved by Leary that in December, 1863, he was requested by Simon and Benj. Long to be present at the measurement of corn on her farm, which Simon said he had purchased from her. He accordingly went there and found assisting in removing said corn, Benj. Long and certain other parties. That when he went there the door of the crib was locked, and the parties broke it open and took out the corn. This corn was raised on the farm of the plaintiff, and the crib was also on her farm. Helped to measure a part of the corn, and was paid for his services by Benjamin Long. Prior to this, in December, he was present at an interview and conversation between the plaintiff and Simon Long, in the road, in relation to the sale of her corn, and he understood that the corn was sold to Simon Long at 70 cents per bushel. She also proved by Heiberger that he was present at the taking of the corn, with his wagon and hands at the instance and request of Benjamin Long. And proved by herself that she was the owner of the farm called Woburn and the crib thereon, in which her crop of corn, raised in the fall of 1863, was placed; that the capacity of the crib was five or six hundred bushels; that the corn was taken from the crib, and that John Cook, the deputy sheriff, demanded the key to the crib twice, which she refused, and forbade his taking the corn, claiming it as her's, and that she had not sold it to Simon Long; that the lock was then broken open and the corn taken out, and the parties were engaged nine or ten days in taking it away, during all which time she persisted in her refusal to allow the corn to be taken away and ordered the crib to be closed.

The defendants then proved by Simon Long, one of the defendants that in October, 1863, the plaintiff was indebted to him, and to a certain Alexander Shafer, and to secure the payment thereof the plaintiff executed to them a mortgage upon most of her personal property, including her said crop of corn, and that after the execution of the said mortgage, he, the defendant, applied to the plaintiff to sell him the said crop of corn, and offered her seventy cents per bushel, and proposed to credit the value thereof on her said mortgage debt due to him, and to pay to her any balance remaining, and that she should have the corn put in her crib for him; that the plaintiff agreed to put the corn in the crib for him, and have the corn measured in the crib by measurement of the crib, but that she would not assent to said proposition without first consulting Alexander Shafer; the defendants further proved by Jacob Thomson and the said Simon Long, that afterwards, at Downsville, in Washington county, the plaintiff and defendant Simon Long met, when the plaintiff told the said Simon that she had seen the said Shafer, who advised her to accept the proposition, and she then and there told the said Simon that the corn was his at seventy cents per bushel; and proved by the said Thomson that at the same time that the plaintiff told Simon Long at Downsville, that the corn was his at seventy cents per bushel, she also told him to come and get the corn. They further proved by Simon Long, that he gave the plaintiff a receipt for the said corn, but could not recollect whether or not he had entered a credit on the mortgage.

They also proved by Mrs. Shank, that afterwards and after the plaintiff had put the said corn or a large portion thereof in the crib, the plaintiff and the defendant Simon had an interview on the public road, in which Simon told her that he had engaged Heiberger's team to take the corn from the said crib, and that he would be there for it the next day, to which the plaintiff replied, that he could come and get the corn, it was his, that there was yet some of the crop not put in the crib, but lying in the field; that Simon declined to take any of the corn from the field, and told the plaintiff to put it in and not tax him with her tenant's work, and that he complained that she was imposing upon him work and duties; that the property belonged to her tenant, and that the corn should be put in the crib. They further proved by the said Simon, that on the evening of the same day of the interview above mentioned, he received notice from the plaintiff that she would not allow him to come upon her close and take away the said corn, and that thereupon he saw his brother Benjamin, and after telling him of his said purchase and all the facts connected with the same, and also the fact that the plaintiff had forbid him taking away the said corn, sold the same to the said Benjamin as the same stood in the said crib; that Benjamin said he would consult counsel on the subject. They further proved, that at the time of the purchase of the said corn by the said Simon, the price given was in advance of the ruling market price; and further offered and read in evidence to the jury an agreement between the appellee and Simon Long and Alexander Shafer, whereby the said Long and Shafer were authorized to sell, or cause to be sold, at public sale, so much of the property mortgaged to them by the appellee, as would fully pay and satisfy the balance of principal and interest of the mortgage debt still due, together with all costs (including counsel fees) pertaining to the sale of said property, or the closing and satisfying of the said mortgage.

The defendants further proved that the corn, included in this agreement, was the same corn mentioned in the declaration, and that the number of bushels was ascertained and acquiesced in by the plaintiff by the measurement made at the time of taking it away. They further proved by Alexander Shafer, that the said Simon Long saw him and told him that he had offered the plaintiff seventy cents per bushel for her crop of corn, and that she told him she would not close the contract without seeing him, Shafer; that Shafer told Long the offer was a good one for plaintiff, and afterwards, the plaintiff herself told the witness of the offer made by Long, and took his advice whether she should sell her crop, and that the witness advised her to do so, as the price of corn then was only about sixty-three or sixty-five cents per bushel; and further proved by the said witness that it was then stated by the plaintiff that she had been offered seventy cents per bushel for her corn, and that the amount of corn was to be ascertained by measurement of the crib, and that the corn was to be put in the crib and Long was to go there and take it away at his pleasure, all of which the witness afterwards communicated to the said Simon Long. They further proved by Benjamin Long that he got five hundred and forty-five bushels and three pecks of corn from the crib; that it was measured in a corn barrel as it was taken out of the crib; that the crib was not measured, neither was the wagon body, and that he accounted with and paid Simon Long for the same corn at the price per bushel agreed upon between them at the time of the sale, and paid him $382.02.

Whereupon the plaintiff, being recalled to the stand, testified that Simon Long came to see her first, before the November Term of Court, 1863, and proposed to buy her crop of corn at seventy cents per bushel; that she told him she could not sell it, she would have to see Mr. Shafer first; that she insisted that the contract should be in writing, and told him she would reserve two hundred bushels; saw Shafer and told him that she had agreed to sell to Simon Long her crop of corn, except two hundred bushels, subject to his approval, and that she insisted with Shafer that the contract should be in writing, and that Benjamin Long was to have nothing to do with it; that she told Shafer the corn was to be measured by the crib or wagon load; never understood the contract as closed between herself and Simon Long, and that she never made sale of it; and further testified that the terms of the contract proposed and agreed upon by her and Simon Long were, that Simon Long was to pay her seventy cents per bushel for the crop, she reserving two hundred bushels thereof, and that Benjamin Long was to have nothing to do with it; that the corn was to be measured by the crib or wagon body, and afterwards to be at the risk of Simon, and the terms of the contract were to be reduced to writing.

Whereupon the defendants recalled Alexander Shafer, and proved by him that he had no recollection of the plaintiff's insisting to him that the contract should be in writing; neither did she make any reservation of two hundred bushels of her crop, and that he did not remember that the plaintiff, in the conversation respecting the sale of her crop, with him, said anything about Benjamin Long's having nothing to do with the sale of the corn, but that on other occasions the plaintiff had complained of him, but witness did not remember what it was.

Upon all the evidence, the plaintiff prayed the Court to instruct the jury as follows:

1. If the jury shall find from the evidence in the cause, that the corn mentioned in the declaration was sold by the plaintiff to Simon...