Smith v. Crichton

• Decision Date: 30 June 1870
• Citation: Smith v. Crichton, 33 Md. 103 (Md. 1870)
• Parties: SAMUEL R. SMITH v. WILLIAM CRICHTON.
• Court: Maryland Court of Appeals

33 Md. 103

SAMUEL R. SMITH v. WILLIAM CRICHTON.

Court of Appeals of Maryland

June 30, 1870

Appeal from the Baltimore City Court.

This was an action of assumpsit instituted by the appellee to recover the balance of a loan made to the appellant. The pleas were never indebted, never promised, and set-off--the character of the last plea will be found sufficiently disclosed in the second prayer of the appellant.

Exception.--The defendant offered the following prayers:

1. That if the jury shall believe from the evidence, that at the time the alleged cause of action accrued, the plaintiff and his son, Malcolm Crichton, were co-partners, and that said cause of action was a partnership transaction, then the plaintiff is not entitled to recover under the pleadings in this action.

2. That if they shall find that in 1865, the plaintiff was a stockholder in the Chesapeake Oil Company, and in the Maryland Copper Company, and was also President of the said first named corporation, and Director and afterwards President of the said last named corporation, and that at the instance of the plaintiff or his authorized agent, defendant was induced to purchase certain shares of the capital stock of the said Chesapeake Oil Company, and to borrow of the plaintiff the sum of $300 for the purpose of paying in part for the said stock, and that to secure the same, the defendant transferred to plaintiff the certificates of all the shares so purchased, and also further to secure said loan, transferred the certificate for 250 shares in the Maryland Copper Company, the property of the defendant, and that afterwards and while said shares were so held in pledge by plaintiff, defendant requested plaintiff or his authorized agent, to sell said stock or any portion thereof at its then market value, and apply the proceeds thereof to the payment of said debt, and that plaintiff or his said agent assented thereto, that then it was the duty of the plaintiff to sell the same or such portion thereof as he agreed to sell without unreasonable delay. And if the jury shall further find that plaintiff altogether failed to sell said stock or any portion thereof, and that damage was sustained by the defendant from such failure by any subsequent depreciation in the value of said stock, without fault of the defendant after the lapse of sufficient time for effecting said sale, that the defendant is entitled to have recouped in this action the amount of such damage as the jury may find him to have sustained as aforesaid.

3. If the jury shall find the facts stated in the second prayer, no verbal declarations which the jury may believe from the evidence were subsequently made by the defendant, can operate as a waiver of his right of recoupment as therein stated, unless the jury shall also find that such declarations were made upon some consideration thereto moving from the plaintiff, or that some action was taken or forborne to be taken by the plaintiff, or some liability incurred by him upon the faith of such declarations.

All of which the court rejected, and instructed the jury, verbally to the following effect:

That although it is the right of the pawnee of stock pledged as collateral security for advances, to sell the same in open market at his own option when the debt matures, yet it is not his duty so to do; that the party pawning might at that time redeem the stock himself, but that he could not compel the party to whom he had pledged the stock to sell the same; and that if damage resulted from the omission of the plaintiff to sell in this instance the stock in question, no recovery could be had against him for such omission by the defendant.

After these instructions were given, and before the jury had agreed upon their verdict, the foreman rose and stated that there was a difference of opinion among the jury, some considering that the court's instructions were positive, that the verdict must be for the plaintiff, and others maintaining that the jury could still exercise their discretion.

The court then instructed the jury that unless they should find fraud on the part of the plaintiff, their verdict must be for the plaintiff, and there was no evidence in the case from which fraud could be inferred.

To the rejection of his prayers, and to the verbal instructions granted by the court, the defendant excepted, and the verdict and judgment being against him he appealed.

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

John V. L. Findlay and Charles E. Phelps for the appellant.

The defendant excepted to the instructions granted, not only as instructions, but as verbal instructions. The question is therefore distinctly presented, whether instructions in that form are legitimate under Maryland practice, when counsel have applied for instructions in writing?

The method of separation of law from fact by written prayers and instructions, is not only a distinguishing characteristic of Maryland practice, but by usage, legislation and adjudication is embodied in the law of the State.

The Act of 1825, ch. 117, as construed by this court, (Davis v Leab, 2 G. & J. 302; Penn v. Flack, 3 G. & J. 369;) abolished general prayers which presented no specific propositions of law. Under this construction, the practice of...