Regester v. Regester
| Decision Date | 15 June 1906 |
| Citation | 64 A. 286,104 Md. 1 |
| Parties | REGESTER v. REGESTER. |
| Court | Maryland Court of Appeals |
Appeal from Court of Common Pleas; George M. Sharp, Judge.
Action by Henry S. Regester against Samuel W. Regester. From a judgment for plaintiff, defendant appeals. Affirmed.
Aruged before McSHERRY, C.J., and BRISCOE, BOYD, SCHMUCKER, and BURKE, JJ.
William Colton, for appellant.
Henry Duffy, for appellee.
On the 9th of May, 1903, Henry S. Regester and Samuel W. Regester entered into a contract under seal in which the obligations of the respective parties thereto were expressed as follows "That the said party of the first part [Henry S Regester] does hereby bargain and sell unto the said party of the second part [Samuel W. Regester], and the latter does herewith purchase from the former two hundred shares of the capital stock of the J. Regester Sons Co., now standing on the books of the said company in the name of the said party of the first part, at and for the sum of ten thousand ($10,000.00) dollars, the same being at the rate of fifty ($50.00) dollars per share, of which sum five dollars have been paid prior to the signing hereof, and the balance is to be paid in cash at any time within thirty days from above date, upon the delivery of said stock of said company to the party of the second part." Upon the expiration of the period limited in the contract for the payment of the purchase price of the stock, the vendee was unable and failed to make payment, but subsequently, on the 22d of June, 1903 he paid on account of the purchase the sum of five hundred dollars, and the time within which he might pay the balance was extended for a further period of thirty days. After this new period of extension had expired, and Samuel W. Regester having failed and neglected to pay for the stock, the vendor Henry S. Regester, advertised and sold the stock by public auction at the salesroom of Patterson & Gahn, auctioneers, in the city of Baltimore. The stock was bought at the sale for the J. Regester Sons Company by William C. Smith, its secretary, for the sum of $1,900. The expenses attending the making of the sale were $191.60, and the total net proceeds derived from the sale were $1,808.40. Samuel W. Regester having paid on account $505, the difference between the contract price and the net amount realized from the sale of the stock was $7,686.60, for which sum the vendor sued the vendee in the court of common pleas, and recovered a judgment for the full amount. The appeal in this case was taken from that judgment.
The record contains 27 bills of exceptions, 26 of which present questions as to the admissibility of evidence, and the twenty-seventh was taken to the ruling of the court upon the prayers. The declaration contains three counts, but the case was tried upon the third count; the first and second counts having been excluded from the consideration of the jury by the granted fourth prayer of the defendant. A demurrer, which was overruled, was filed to the third count. This demurrer was not discussed in the brief or argument of the appellant's counsel, and, as we see no valid grounds of objection to the count, the demurrer will not be further alluded to. In order to pass intelligently upon the numerous exceptions, it will be necessary to understand, first, the precise issues raised upon the pleadings; secondly, the rights and obligations of the respective parties under the contract; thirdly, the evidence introduced; and, fourthly, the nature and character of the testimony which was offered by the appellant and which the court refused to admit, the exclusion of which constitutes the ground of 26 exceptions, and to determine whether there was reversible error in the refusal of the court to admit the proffered testimony. The third count is based upon the writing obligatory executed by the parties on the 9th day of May, 1903. It alleged that by this contract the plaintiff sold to the defendant, and that defendant purchased from the plaintiff, the stock therein mentioned for the sum of $10,000, of which $5 were paid by the defendant on account of the purchase price at the time of the execution of the contract; that the defendant agreed to pay the balance of the purchase money in 30 days thereafter; that the 30 days expired, and the defendant paid to the plaintiff $500 on the purchase price, and refused to pay the balance, although the plaintiff was willing and ready to perform his part of the contract. It is then alleged that "after due notice to the defendant, and after due advertisement thereof, the plaintiff sold said two hundred shares of stock at public auction for the sum of nineteen hundred dollars." The defendant pleaded three pleas in confession and avoidance. The first avers that after the execution of the contract mentioned in the declaration the plaintiff rescinded the same; the second alleged that after the failure of the defendant to take and pay for the stock in the declaration mentioned the plaintiff went through the form of selling same, and that in conducting said sale the plaintiff did not in good faith endeavor to obtain for said stock the best price he could; and in the third plea it is averred that the plaintiff did not sell the stock mentioned in the declaration for the best price which he could, by acting in good faith and with reasonable diligence, have obtained for the same. The plaintiff traversed these pleas, and issue was joined. The legal effect of the defendant's three pleas was the confession or admission upon the record of every fact alleged in the declaration. The distinct and only defenses raised by the pleas were the rescission of the contract, bad faith in the conduct of the sale by the plaintiff, and want of good faith and reasonable diligence in the sale of the stock, in consequence whereof he did not sell the stock for the best price he might have obtained.
In this connection it might be proper to notice some of the exceptions to the testimony. Where a witness testifies upon a controverted fact, it is always competent for the opposite party, in order to affect his credibility and to enable the jury to determine the value and weight to be given his evidence, on cross-examination to show the bias, prejudice bad feeling, or hostility of the witness. Mr. Greenleaf, in his first volume on Evidence (7th Ed., § 446), says that ...
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