Mount Vernon Brewing Co. v. Teschner
| Decision Date | 15 May 1908 |
| Citation | 69 A. 702,108 Md. 158 |
| Parties | MOUNT VERNON BREWING CO. v. TESCHNER. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; George M. Sharp Judge.
Action by Oscar Teschner against the Mount Vernon Brewing Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Wm. C Schmeisser, for appellant.
Harman Knapp, Ulman & Tucker, for appellee.
This is an appeal from a judgment rendered against the appellant in favor of the appellee on a guaranty made by the former. On October 31, 1906, the appellant entered into a contract with J. E. Newman & Co. of Pittsburg by which the latter sold to the former 15,000 bushels of fancy malt at 61 cents per bushel, screened, f. o. b. cars, Baltimore, "to be shipped in bags as ordered during season ending December 31, 1907." At the bottom of the contract there is written, "Deliver the within contract to Mr. Oscar Teschner or order," signed, "Mt. Vernon Brewing Co., J. M. Jackson, Prest." The plaintiff testified that he had some conversation with Mr. Jackson in which the latter told him he had bought more malt than he wanted, and requested him to sell the 15,000 bushels for him. He declined to do that, but said that if the defendant would give him its guaranty for delivery of the contract of Newman & Co. he would pay it 67 1/2 cents per bushel, f. o. b., Baltimore, "which offer was accepted, and the contract turned over to the plaintiff, properly transferred and indorsed, and that the defendant gave him a guaranty in writing." The guaranty spoken of, which was dated March 8, 1907, is addressed to the appellee, and is as follows: "We hereby guarantee the delivery of malt purchased from J. E. Newman & Co., Pittsburg, Pa., as per contract herewith inclosed" --and is signed by the company through its president. The account filed, as the basis of this suit, was for the difference between the market value of the malt on April 18, 1907, the alleged date of refusal to deliver, and the contract price (67 1/2 cents per bushel); the account stating the market price to have been 95 cents per bushel. The verdict was for $3,750, which indicates that the jury determined the market price to be 92 1/2 cents per bushel.
1. In the course of the trial the defendant took nine exceptions. The first was from the refusal of the court to grant a motion "to strike out all the testimony on the direct examination which was in regard to any correspondence or conversations had between the appellee and J. E. Newman & Co.; that it be stricken out on the ground that the correspondence had not been produced, and we have not had the opportunity to cross-examine the witness on it." That motion was made while the plaintiff, who was the first witness, was on the stand. It could not prevail for technical reasons, if it had been otherwise proper. In the first place it does not appear that any objection was made to the testimony when offered, and then a copy of the letter from J. E. Newman & Co. was introduced, without objection so far as the record discloses. If a witness testifies to certain facts, and it is subsequently developed that they were in writing, the trial court may very properly direct that such testimony be stricken out, unless the writing is produced, or its absence accounted for in such way as to authorize secondary evidence; but the motion must then be so framed as to confine it to the objectionable testimony, and should not ordinarily be granted if it appeared when the testimony was offered that it was in writing, but was not objected to at the time. Then this motion was too broad, as it not only included the copy of the letter spoken of, which had been admitted without objection, but it also included conversations. But in addition to that the witness had testified that he had instructed his counsel to call upon Newman & Co. to deliver the malt, which was done about the 17th or 18th of April. The letters which passed between them were afterwards produced when Mr. Harman, who wrote them, was on the stand. So without further discussing this exception we think it was properly overruled, and, even if there had been any error in the ruling, the subsequent production of the letters, which were those relied on, avoided any injury that the appellant might have sustained by their non-production.
2. The letter of the appellee's attorneys of April 17th, which was offered in evidence, shows that they notified J. E. Newman & Co. that their client was ready to pay for the malt on delivery by giving his note for 90 days as mentioned in the contract, or by payment of cash on receipt of car, and requested them to inform them when they would be ready to make the shipment. Newman & Co. replied on April 18th On April 19th the attorneys again demanded of Newman & Co. delivery of the malt to the appellee, and informed them that, unless there was prompt compliance with their request, they would institute proceedings to protect their client's interests, and on April 22d wrote to the appellant that they had notified Newman & Co. that, unless there was an immediate compliance with the order, they would institute proceedings. The appellant had previously (March 11th) written to the appellee, who was then in New York endeavoring to sell the contract, that The plaintiff produced as a witness Henry G. Remers of Baltimore, who had been in the malt business for 30 years, including 1907. He had testified that the Journal of Commerce, which is published in New York, gives quotations of the market prices of malt from day to day. He was then asked, "does the price in New York differ from the price in Baltimore?" An objection to that question having been overruled, an exception was taken, which is presented by the second bill of exceptions. If it is admissible to prove the market prices of articles by newspapers, which we will consider presently, we can see no objection to this question. If the witness had replied in the negative, one way of showing the market price in Baltimore was by proving what it was in New York. But at any rate it was simply leading up to the more important questions which are presented by the third and fourth bills of exception, and could not have injured the appellant.
3. The witness answered the above question by saying: He said he considered the quotations in the New York Journal of Commerce a good guide to go by, and that it was entirely reliable. The plaintiff then handed the witness a copy of that paper, dated March 11, 1907, which he identified, and the plaintiff offered it in evidence, "and read from it to the jury a quotation of season's contracts for malt at 85 to 90 cents." The defendant objected to the paper being put in evidence and to reading the quotations, but the court overruled the objection, which ruling constitutes the third bill of exceptions. The fourth exception was to allowing a copy of the paper of March 25th, and those of April 15th, April 25th, and May 3d were also mentioned, but the question calling for them does not appear to have been excepted to. The defendant made a motion to have the newspapers ruled out, but it was overruled, and the ruling constitutes the fifth bill of exceptions. We will consider the third, fourth, and fifth together.
The precise questions involved in these exceptions have not been passed on by this court, although those more or less analogous have been referred to. In Munshower v State, 55 Md. 24, 39 Am. Rep. 414, the question was whether Gruber's Almanac was admissible in evidence to prove the hour the moon rose on a certain night, which it was conceded had become material and competent for the state to show. In discussing the subject Judge Miller, who delivered the opinion, said that "courts have received as evidence weather reports, reports of the state of the markets, prices current, and insurance tables tending to show the probable duration of human life, though these are records which are not capable of mathematical demonstration, which cannot be tested by any certain law, and which may or may not omit the record of changes which have actually taken place." In Morris & Co. v. Columbian Iron Works, 76 Md. 354, 25 A. 417, 17 L. R. A. 851, it was held that "lists" which were promulgated by an authority which dealers in hardware recognized and followed could be used by witnesses to refresh their memories as to the prices of certain articles; the witnesses having testified as to the correctness of the lists and to the impossibility of any one carrying all the prices in his mind. And in Knickerbocker Ice Co. v. Gardiner Dairy Co. (decided at the last January term) 69 A. 405, we quoted with approval from 2 Wigmore on Ev. § 2155, as to evidence of certain conversations by telephone being sufficient to go to the jury "just as testimony based on prices current is received." Ante, § 719. The rule is thus stated in 16 Cyc. 1143: ...
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