Smith v. Carr

• Citation: 56 A.2d 151,189 Md. 338
• Decision Date: 10 December 1947
• Docket Number: 33.
• Parties: SMITH et ux. v. CARR et al.
• Court: Court of Appeals of Maryland

56 A.2d 151

189 Md. 338

SMITH et ux. v. CARR et al.

No. 33.

Court of Appeals of Maryland

December 10, 1947

Appeal from Circuit Court, Prince George's County; Charles G Marbury, Judge.

Action by Edward R. Carr and Lloyd R. Coates against Albert H. Smith and Mary Smith, his wife, for brokers' commissions for the sale of realty. From the judgment, defendants appeal.

Appeal dismissed.

J. F Lillard, Jr., of Hyattsville, for appellants.

H. Max Ammerman, of Washington, D. C. (I. J. Keane of Hyattsville, on the brief), for appellees.

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

COLLINS, Judge.

This is an appeal by Albert H. Smith and Mary Smith, his wife defendants below, from a judgment with interest and costs, rendered in the Circuit Court for Prince George's County in favor of the appellees here, plaintiffs below, Edward R. Carr and Lloyd R. Coates.

The suit was brought under the common counts and a special count for real estate brokers' commissions for the sale of the property of the defendants at 4112 Claggett Road, College Heights Estates, Maryland, to Mr. and Mrs. Leo Saemann. The judgment was entered on a verdict rendered by a jury.

The appellants assign as error (1) the denial of their motion to withdraw the case from the jury and direct a verdict for them. This motion was offered at the end of the plaintiffs' case but was not re-offered at the end of the whole case; and (2) that the Trial Court erred in its instructions to the jury.

(1) Section III--Trials, Rule 4--Directed Verdicts--of the General Rules of Practice and Procedure adopted by this court and effective September 1, 1941, provides in part as follows:

'In any proceeding tried by jury any party may move, at the close of the evidence offered by an opponent or at the close of all the evidence, for a directed verdict in his favor on any or all of the issues. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been made, but in so doing he withdraws the motion. * * *' (Italics supplied here.)

See also Rule 17 of the Court of Appeals. After the defendants offered their evidence the motion for a directed verdict was not re-offered or renewed. Under the rule above set forth the defendants, by offering their evidence, withdrew their motion for a directed verdict offered at the close of the plaintiffs' case. Therefore, there was no motion before the Court to withdraw the case from the jury at the close of all the evidence. There is nothing before this Court to review on this question. Rule 9 of the Court of Appeals provides that this Court shall not decide any point or question which was not decided by the Court below.

(2) The second ground on which the plaintiff relies is that the Trial Court erred in its instructions to the jury. The printed brief in this Court shows no objection to the charge of the Trial Judge. Rule 39 of the Court of Appeals; Strohecker v. Schumacher, etc., 185 Md. 144, 43 A.2d 208. The transcript of the record shows that the Trial Judge asked the attorneys for the plaintiffs and for the defendants if they had any suggestions to offer for changes or modifications in the charge. The court was informed by those attorneys that there was no objection to the charge. Rule 6(c) and (d), Part III of the General Rules of Practice and Procedure...