Mish v. Main
| Decision Date | 26 March 1895 |
| Citation | 31 A. 799,81 Md. 36 |
| Parties | MISH v. MAIN. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Washington county.
Action of replevin by Frank W. Mish, receiver, against Martin L Main. Judgment for defendant, and plaintiff appeals. Reversed.
Argued before ROBINSON, C.J., and BRISCOE, McSHERRY, FOWLER ROBERTS, and PAGE, JJ.
T. A Poffenberger, Alex. Armstrong, M. L. Keedy, C. A. Little, and A. R. Hagner, for appellant.
W. J. Witzenbacker and F. F. McComas, for appellee.
This suit was brought by the appellant, as receiver of the Surbridge Manufacturing Company, to recover possession of a number of bicycles. The facts are sufficiently set out in the reporter's statement, and need not be again repeated. The record contains nine exceptions, eight of which relate to the admissibility of the proof offered, and the ninth exception is taken to the granting by the court of the appellee's prayer, by which the case was taken from the jury. It will not be necessary to examine in detail the various exceptions to the testimony offered, as most of them are closely analogous and can, in most instances, be considered together.
The first exception is taken to the appellee's offer to prove by a notary public the fact of his having protested, for nonpayment, the negotiable paper of the Surbridge Company, and to prove how much of said paper he had protested, and when the same had been done. One of the questions in issue in the cause was the insolvency vel non of the company. It has been repeatedly held in this state, and by the supreme court of the United States, that a merchant or trader who is unable to pay his debts as they became due, in the ordinary course of business, is insolvent. Castleberg v. Wheeler, 68 Md. 277, 12 A. 3; Toof v. Martin, 13 Wall. 40. And, if insolvent, how can the fact be better established than by one who has direct information as to the protest, for nonpayment, of the company's negotiable paper? At common law the notary was a competent witness to establish the fact of the protest, for nonpayment, of such paper. Cookendorfer v. Preston, 4 How. 317; Johnson v. Harth, 2 Bailey, 183. There is nothing in the law of this state which affects the notary's status as a witness, although it may have enlarged the scope of his special acts. This proof the appellant should have been permitted to give.
The second exception presents the same question already disposed of in considering the first exception, and in addition thereto the appellant offered to prove the facts set out in the statement of the reporter. In seeking to establish a right to the possession of the bicycles in controversy, the appellant offers to prove, not only that the company was hopelessly insolvent, but that the directors, and especially the appellee, had full knowledge of the exact financial status of the company. And yet, possessed of this information, the directors sold all of the property and effects of the company to Surbridge, after whom the company was named, and who was then a director in and the president of the same, on the following terms of sale: Surbridge, the president and a director of the concern, was to pay for the stock subscribed or held by the other directors at the rate of 20 per cent. of the par value of the same, by giving his personal notes, which were to be paid in bicycles to be manufactured out of material bought by the company prior to such sale. That the bicycles manufactured by said...
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