Smith v. Cooke

• Decision Date: 28 June 1869
• Citation: 31 Md. 174
• Parties: WILLIAM T. SMITH v. PORTER COOKE.
• Court: Maryland Court of Appeals

31 Md. 174

WILLIAM T. SMITH v. PORTER COOKE.

Court of Appeals of Maryland

June 28, 1869

Appeal from the Superior Court of Baltimore City.

This was an action of assumpsit for goods sold and delivered, brought by the appellee against the appellant. The defendant pleaded "never indebted" and "did not promise as alleged," upon which pleas issue was joined.

First Exception.--At the trial the plaintiff offered to read to the jury, from the deposition of Richard Holmes taken before a commissioner to be used in the two cases of Porter Cooke v. William T. Smith and Porter Cooke v. Samuel J Smith, the reply of said Holmes to the second interrogatory propounded to him, the said question and reply being as follows:

Are you acquainted with William T. Smith and Samuel J. Smith, the above-named defendants, or either of them, and if yea, how long have you known them, and in what business are they or either of them engaged, when were they so engaged, and where was the said business carried on in 1863, and was there any connection in business between the said William T. and Samuel, if so, state what was the connection, and your means of knowledge on the subject?

"I am acquainted with the defendant in both cases, and have known them at least twelve years; they are packers of oysters and fruit, and have been engaged in that business ever since I have known them; in the year 1863 they had two shops. William T. Smith's place of business was in Lemon street and Samuel J. Smith & Co. had their place of business at the junction of South Howard and Liberty streets; William T Smith and Samuel J. Smith were in partnership together. According to Samuel J. Smith's own account to me, he told me that his father William T. Smith was the company."

Whereupon the defendant excepted to that part of said second interrogatory which is in the following words: "and was there any connection in business between the said William T and Samuel; if so, state what was that connection, and your means of knowledge on the subject," because the same was irrelevant. The court (Martin, J.,) overruled this objection and directed the answer to be read to the jury. To this ruling of the court the defendant excepted.

Second Exception.--The plaintiff then read interrogatory No. 2 1/2 propounded to said witness in the following words: "Under what name or title was the business on Lemon street conducted; did you ever hear Samuel J. Smith or William T. Smith say that Samuel J. Smith was a partner in the business conducted on Lemon street?" And was about to read to the jury the answer thereto, when the defendant objected on the ground that said interrogatory was """" leading," but the court overruled the objection and permitted said answer to be read to the jury. The defendant excepted.

Third Exception.--Waived.

Fourth Exception.--This exception was taken to the admission by the court of the answer of the said witness Holmes to interrogatory No. 3 1/2, which was in the following words: "State to whom the cans furnished under the contract, mentioned in your answer to the previous interrogatory, were all charged, and why they were so charged?"

Fifth Exception.--Waived.

Sixth Exception.--This exception was taken to the admission by the court of said witness' answer to the following interrogatory: Were you acquainted with Theodore R. Smith; if yea, state his relationship to the above-named defendants, state in what employment he was at the time of the transactions of which you have spoken, and before; was he a person of any credit in July, 1863, and would you, either for yourself or your employer, have credited or given him credit on sales of cans; did he fail in his business at the Penitentiary?

Seventh Exception.--Waived.

Eighth Exception.--The plaintiff having proved by the witness Holmes that the cans were sold and delivered to William T. Smith and Samuel J. Smith, the defendant put on the witness stand Roberts, who testified that he was assistant superintendent of the Maryland Penitentiary in 1863; that he knew the witness Holmes, who was then superintending the manufactory of the cans there for the plaintiff. The defendant then asked whether he had any conversation with the witness Holmes, late in the summer of 1863, as to whom he was selling cans for the plaintiff, and announced that he expected to be able to show that Robert Holmes, at the time he was selling the cans in question, repeatedly declared that he was selling said cans to Theodore R. Smith, to which evidence the plaintiff objected. The court sustained the objection, and ruled that the testimony was inadmissible; to this ruling of the court the defendant excepted.

Other facts affecting the points decided, will be found in the opinion of the court.

The cause was argued before BARTOL, C.J., BRENT, GRASON and ROBINSON, JJ.

P. McLaughlin, for the appellant.

Samuel J. Smith is not a party to this action. His statement, as to the partnership, is only hearsay evidence, and should not be admitted for the purpose of making William T. Smith liable in this action, who is sued separately. The law will not allow a man to be charged with words spoken in his absence. Shilling v. Carson, 27 Md. 175, 188; Wolfe v. Hauver, 1 Gill, 84, 87, 94; Whiteford v. Burckmyer, 1 Gill, 127, 140; Carroll v. Granite Manuf. Co. 11 Md. 399, 407, 408.

In support of the sixth exception, the following authorities were relied on: 1 Greenl. Ev. sec. 448; Bannon v. B. & O. R. R. Co. 24 Md. 119; Cherry v. Stine, 11 Md. 1.

The eighth exception was well taken. The defendant had a right to show what the witness said at other times, as to whom he was selling the goods in question. Tucker v. Welsh, 17 Mass. 160; Titus v. Ash, 4 Foster, 319; Hedge v. Clapp, 22 Conn. 262; Robinson v. Hutchinson, 31 Vt. 443.

Frederick W. Brune, for the appellee, cited Franklin Bank v. Pa. Md. & Del. Steamboat Co. 11 G. & J. 33-35; Story on Agency, secs. 134-138; Fairlie v. Hastings, 10 Ves. 126; Bethan v. Benson, 5 E. C. L. 456; Corbin v. Adams, 6 Cush. 93; York...