MacEwen v. State, 79

• Citation: 194 Md. 492,71 A.2d 464
• Decision Date: 10 February 1950
• Docket Number: No. 79,79
• Parties: MacEWEN v. STATE.
• Court: Court of Appeals of Maryland

Page 492

194 Md. 492 71 A.2d 464 MacEWEN
v.
STATE. No. 79. Court of Appeals of Maryland. Feb. 10, 1950.

Page 495

[71 A.2d 465] Wesley E. Thawley, Denton, and John Clarence North, Easton (Lawrence E. Birge, Easton, and W. Brewster Deen, Denton, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and Harry E. Clark, Jr., State's Atty. Talbot Co., Easton, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

GRASON, Judge.

John H. MacEwen, trading as Campbell-Ensor Company, was engaged in the business of selling advertisement specialties, such as pencils, book-matches, calendars, and fans, with offices at Easton, Maryland. The Maryland Credit Finance Corporation (called herein 'Corporation') financed him in this business. From 1942 to 1944 there was no written agreement between the Corporation and MacEwen, and their transactions were conducted by oral agreement. In 1944 a written agreement was entered into. This agreement, which is filed as an exhibit in the case, required MacEwen to file with the Corporation, quarterly, a financial statement; it gave the right to the Corporation to select such orders placed with MacEwen by such business houses as it chose, and

Page 496

the Corporation discounted these orders at their face value. To further secure the Corporation, MacEwen gave it a blanket assignment of all his assets.

The business was operated in this manner: MacEwen's salesmen solicited orders from business houses for calendars and other specialties. These orders were advertisement of a particular business, and the name of the customer appeared on the calendar or other form of advertisement. MacEwen placed these orders with firms for the purpose of manufacturing them. The business houses would not pay for these orders until they were delivered by MacEwen. On occasions these orders would not be ready for delivery for from nine months to a year, and would be paid for upon delivery. When these orders were received by MacEwen they were discounted by the Corporation, and it was the money thus received that enabled MacEwen to meet current expenses, such as payment of commissions to salesmen, to the concerns that manufactured these specialties, office expenses, and other expenses necessary to carry on the business. The concerns that placed such orders knew nothing of the financial arrangement between MacEwen and the Corporation. When an order that had been discounted was paid to MacEwen, under their agreement MacEwen was to promptly pay the money received to the Corporation.

This business prospered, and it grew from a mere trickle to an $80,000.00 a year business. Mr. Roulston, an official of the Corporation, has, from the inception to the termination of their business transactions, handled the MacEwen account. In 1947 Roulston told MacEwen that his business was too large and he would have to reduce it to not more than $40,000.00. He refused to discount further orders until the business had been so reduced. MacEwen did reduce his indebtedness to the Corporation by the [71 A.2d 466] sum of $16,000.00, in the summer of 1947. He had orders for calendars for the year 1948, and he persuaded Roulston to finance him for that particular business. Roulston accommodated him until about

Page 497

March, 1948, when the Corporation refused to discount future orders until his business was reduced. After March 1948 his business collapsed and he was thrown into bankruptcy.

On May 17, 1949, the Grand Jury for Talbot County returned an indictment against MacEwen for obtaining the sum of $519.50 from the Corporation on the 19th day of May, 1947, by means of false pretense. A Bill of Particulars filed by the State, on demand of the traverser, charged that the false pretense by MacEwen 'consisted of the representation that a certain written paper given to the Maryland Credit Finance Corporation, * * * on or about the twelfth day of May, in the year of our Lord nineteen hundred and forty-seven', was then and there a true and correct statement of the net worth of MacEwen when he then and there well knew he was insolvent. This statement was signed by the traverser on May 10, 1947, and filed as 'State's Exhibit No. 2' in the case.

The defendant was tried in the Circuit Court for Talbot County, before a jury, and found guilty, and from a judgment and sentence, MacEwen appealed.

The questions presented to this court arise solely on rulings of evidence of the lower court. Mr. Roulston has been president of the Corporation since 1946, and prior to that time he was executive vice-president and secretary. He was called as a witness for the State. After describing the nature of MacEwen's business, he was asked: 'Q. Now I hand you two more paper writings, Mr. Roulston, and ask you what they are--tell the jury?' This question was objected to and counsel for traverser stated: '* * * They claim that the false pretenses in question were perpetrated by a written financial statement dated April 30, 1949. At the same time they introduce a similar statement which was dated December 31, 1946; in other words, just four months...