Woodward v. Tyng , 123 Md. 98 ( 1914 )

The facts, and legal principles involved in this litigation were so fully and clearly set out in the opinion prepared by CHIEF JUDGE BOYD, when this case was first before this Court (121 Md. 422), that a restatement of them would serve no useful purpose. It will be sufficient to note any variation in the evidence adduced in the present record, from that which appeared in the first appeal, and certain rulings of the Court as to evidence and upon prayers, which were not previously presented.

This record contains nineteen bills of exception, but at the argument the 1st, 5th, 6th, 7th, 16th, 17th and 19th were expressly waived or practically abandoned, and, therefore, may be excluded from consideration.

Upon the remand of the case from this Court, the eleventh count of the declaration was amended in conformity with the opinion of this Court, and the pleadings having been fully made up, the case proceeded to trial and resulted in a judgment in favor of the plaintiff for the sum of $5,618.25, being the difference between the price at which the stock had been sold to the defendant, Woodward, and the amount realized at the resale of it, after his refusal to complete the purchase, together with interest on such sum. The vital question is now, as it was on the first trial, whether in making the resale Tyng Co. acted in good faith, and the sale was fairly made for the best price obtainable.

From the evidence in the former case it appeared that the stock of the Burroughs Adding Machine Company was what was known as an unlisted stock, and that the sale was made after the sending out by Tyng Co. of a circular letter addressed to a number of brokers and others supposed to be interested in the purchase of the stock of the company, offering the fifty shares for sale. The objection made was to the manner of making the sale, in that it had not been made either upon a stock-board or by auction, and it was held that a public sale in the sense of an auction sale, was not necessary, that it was only requisite to show that the property was sold for a fair price; that to have offered the stock at public auction under the circumstances might have resulted in a greater sacrifice than was made, and that not being a listed stock, and hence not being sold on the exchange, the proper mode was that the stock should be sold as such stocks are customarily sold and that the jury should have passed upon the facts under proper instruction from the Court.

JUDGE BOYD was careful in that opinion to say that "This Court has not however, decided that such a sale as we are now concerned with cannot be made at private sale." The evidence which is now presented to us differs markedly in one respect from that presented at the first trial. It is now shown that there was a stock exchange in the City of Detroit where the home office of the Burroughs Adding Machine Company was located; that the stock of that company was listed upon the exchange in Detroit, but that sales of it at such exchange were infrequent, and that none at all took place between the 25th August and the 10th October, 1911. The evidence of Mr. Andrews to the effect that the stock was customarily bought and sold by mail, telegram or long distance telephone with individual holders or brokers representing individual holders remains the same. The measure of the duty of Tyng Co. is aptly expressed in Brownlee v. Bolton, 44 Mich. 218, where it is said that "A vendor's right of resale must be exercised in good faith and at such time, by such methods and under such circumstances as are most likely to produce the fair value of the property and he (the vendor) has the burden of showing it was so exercised." See also, Pratt v.Freeman, 115 Wisc. 648.

Prior to the making of the sale Tyng Co. had apprised Woodward of their purpose to resell the stock, but they were not under any necessity of notifying him as to the time and place of sale, the notice of the intention being sufficient. Mendel v.Miller, 126 Ga. 834; 7 L.R.A. (N.S.) 1184.

There is no testimony whatever given to contradict the testimony of Mr. Andrews to the effect that the customary method in buying and selling this stock was that pursued on this resale, and this brings the case directly in line with the rule laid down in Regester v. Regester, 104 Md. 1, that "whether an unpaid seller has exercised reasonable diligence in the conduct of a resale upon default of the buyer is a question of law for the Court on facts to be found by the jury."

The essential facts to call for the submission of the case to the jury had thus been established. It was impossible for the trial Court to say as matter of law that due diligence had not been exercised by the plaintiff in the sale of this stock, assuming of course that no proper evidence had been excluded or improper evidence admitted.

This involves as the next step a consideration of the rulings of the trial Court upon the questions of evidence.

The second bill of exceptions was to permitting the plaintiff to prove by Mr. Andrews the fact and extent of the fluctuations in the market value of the stock, and the appellant claims that such evidence was improper because of the fact that the stock in question was listed on the Detroit Exchange. At a subsequent stage of the case Mr. Hamlin, the secretary of the Detroit Exchange was examined, and it appears from his testimony that while so listed, the sales of it were infrequent, and even if the records of the transactions upon that exchange had been offered, in view of the usual manner pursued in dealing with the stock those records were not likely to afford accurate evidence of the market prices and that the variations thereof were well within the knowledge of brokers who like Tyng Co. made a specialty of dealing in stocks of this class, and particularly this stock. No error is therefore perceived in the ruling of the Court upon this exception.

The third and fourth exceptions are practically the same. The one being taken to a question and the other to the refusal of a motion to strike out the answer given to that question. The question was directed to the custom with regard to notifying vendees of the firm of Tyng Co. of purchases made for their account. Its materiality in the present case depends solely upon whether the appellant had notified Tyng Co. prior to the sending of the notice of a cancellation of the order for purchase. This Woodward claims to have done over the long-distance telephone, and with equal positiveness such cancellation is denied by Mr. Andrews; whether the cancellation was in fact made or not was an important question to be determined by the jury. The custom of Tyng Co., or of brokers in general in Chicago was of minor importance. The offer was to prove, not what was done in this particular case, but the general practice which might or might not have been followed in this instance, and even assuming that the Court fell into error in this ruling, it is impossible to see how the appellant was in any way prejudiced thereby.

The eighth and ninth exceptions also relate to but a single point. The appellant was under examination upon call of the appellee, and was asked whether there had ever been a quotation of $400 — for the stock since the end of 1911; to which he replied that he thought he had read in the newspapers a quotation as high as 419; asked to name the newspaper, in which such quotation had been given, he replied that he had a paper that could answer that question; which paper on request he produced and handed to the counsel for Tyng Co. Upon cross-examination his own counsel endeavored to introduce the paper which had been so called for but not offered by the plaintiff, and upon objection the paper was excluded. The paper in question was a letter addressed to the appellee under date of October 2d 1912, by a Mr. Wenger, purporting to give certain offerings, or of bids for the Burroughs stock of September 6th, and September 12th and 14th, 1911. Now, when or where Mr. Wenger obtained the figures contained in his letter does not appear; nor does the letter purport to contain a record of an actual sale of a single share of the stock; in addition to which the question in response to which the paper first appeared, was as to quotations since the end of the year 1911, while all of the figures contained in the letter were figures of bids or offerings made during the month of September, 1911, so that the paper even if otherwise unobjectionable was not germane to the question propounded. The action of the trial Court, therefore, in excluding it from the consideration of the jury, was entirely correct.

The tenth exception was to the offer in evidence of a letter purporting to be written on September 6th, 1911, by George M. West, a dealer in securities, to Mr. Wenger, inquiring if the latter had stock of the Burroughs Company for sale; and purporting to give a bid of $385 and an offer of $400. The letter itself does not make a direct bid for the stock at a firm price, nor does it purport to record any sale, and no valid objection can be predicated upon the exclusion of this letter.

The eleventh exception was similar in all respects and was with regard to the tender of a letter purporting to have been written by John C. Young.

The twelfth and thirteenth exceptions likewise have to deal with but a single matter. Frederick E. Woodward, the defendant in the suit, had been called by the plaintiff for the purpose of proving certain facts. Evidence had been given on the part of the plaintiff of a long distance telephone conversation between Andrews on behalf of the plaintiff, and the defendant, and the counsel for Woodward, on cross-examination sought to elicit from him that in such conversation over the telephone the defendant had countermanded his order of purchase, that is, it was an endeavor to prove the defendant's case as a part of the evidence of the plaintiff out of the defendant's own mouth. It is to be borne in mind, first, that the defendant, when called by the plaintiff, had not been examined by him upon the full details of that conversation, — that the plaintiff, in calling the defendant had upon the stand an adverse witness, and not merely adverse, but the party whom the plaintiff was seeking to make liable for its demand. Under such conditions the rule restricting the cross-examination to subjects brought out by examination in chief is more rigidly enforced than under any other conditions. Griffith v. Diffenderfer, 50 Md. 466;Lewis v. Clark, 86 Md. 327. The plaintiff was entitled to present its view of the case to the jury unprejudiced by the claims of the defendant in order that after hearing the complete evidence, the jury might be in a position to pass fairly upon the facts. The lower Court was, therefore, entirely right in sustaining the objection.

The fourteenth and fifteenth exceptions relate to the exclusion of a deposition taken in the City of Chicago, of a certain Joseph E. Harvey, and it is most earnestly contended in behalf of the appellant that the objection to this evidence came too late, not having been taken until a jury had been sworn. For this reliance is had on the case of Cumberland Glass Co. v. DeWitt,120 Md. 381, and upon the language used by JUDGE BURKE in that case, with regard to the admissibility of the deposition of a witness Frist, when he said he "filed no exceptions until after the jury was sworn and the plaintiff had been examined and therefore under the rule quoted exceptions to the execution and return of the commission were waived;" the objection in that case was not to the substance of the evidence taken under the deposition, but to the execution and return of the Commission; while in the present case no exception is taken as to either the execution or return, but to the substance of the deposition itself. The language of JUDGE BURKE already quoted cannot therefore be regarded as authority for the proposition that where testimony taken by way of deposition is objected to upon grounds other than those which have to do with the execution and return of the Commission, an objection to be available must be made before the swearing of the jury.

The purpose of Harvey's deposition attempted to be introduced was to show that an attempt had been made to obtain the presence of Mrs. Dutton, the supposed vendee at the resale of the stock, at the taking of depositions in Chicago; the deposition tending to show that there was no power lodged in the notary by whom the deposition was taken to summon or compel the attendance of witnesses, a statute having that end in view having been held unconstitutional in Puterbaugh v. Smith, 131 Ill. 199; andMcIntyre v. The People, 227 Ill. 26. But the evidence given by Harvey did not show even an attempt to summon Mrs. Dutton, or give her notice of the hearing before the notary. He went to her house on two or three separate occasions but failed to find her, and when he did send a message through the maid, it was not that her presence was desired for the purpose of giving testimony at a certain time and place, but that he had some money for her. The case is therefore entirely different from that of WeatherfordCo. v. Duncan, 88 Tex. 611[88 Tex. 611], where it was held not to be error to allow the plaintiff to prove that he had had witnesses subpoenaed, and that the witnesses were in the employ of the defendant that there had been a regular summons issued for the witnesses desired; while in the case at bar not only was Mrs. Dutton not subpoenaed, but so far as the evidence of Harvey discloses she was not even notified that depositions were to be taken or that her presence was desired upon the occasion of the taking; and the fact that Mr. Harvey endeavored to do an act which he had no legal right to do, and to do it by the sending of a misleading message can form no basis for the admission of his evidence. Mrs. Dutton who was the aunt of Andrews, an officer connected with Tyng Co., may well have been an important witness for the plaintiff itself to have placed upon the stand, their failure to do so would have been a legitimate matter for comment before the jury, but that also is an entirely different proposition from the admissibility of the deposition of Harvey. This Court concurs with the lower Court in its rulings as set forth in these two bills of exception.

At the conclusion of the evidence, the plaintiff offered five prayers and the defendant twenty-seven, and in addition the plaintiff offered a motion to strike out certain evidence. The Court granted the plaintiff's third and fourth prayers and refused the first, second and fifth, and denied the motion. To the refusal of the three prayers of the plaintiff no objection seems to be made.

The defendant's first and second prayers sought to withdraw the case from the consideration of the jury, but as already indicated there were facts proper to be submitted to the jury, and these two prayers were properly refused. By the granting of the defendant's 3d 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th and 12th prayers there were withdrawn from the consideration of the jury the first ten counts of the declaration, and these prayers being granted, the defendant's 13th, 14th, 15th and 16th prayers were rendered unnecessary.

The defendant's 17th and 18th prayers were alternative forms of stating defendant's contention, and the 17th prayer having been granted, the 18th was properly refused.

The 19th, 20th, 21st, 22d 23d and 24th prayers of the defendant all dealt with the manner of the sale of the stock, and all involved the question of the sufficiency of notice, and as drawn were properly refused.

The 25th and 26th prayers were alternative prayers upon the subject of the diligence exercised on the part of the plaintiff in the resale of the stock, and the rule having been correctly stated in the defendant's 25th prayer which was granted, it became unnecessary to grant the 26th.

The 27th prayer of the defendant related to the question of fraud in the resale of the stock to Mrs. Dutton, and therefore placed the issue fairly before the jury to find that the resale was a proper sale, made in good faith in the exercise upon the part of the plaintiff of ordinary care, skill and diligence.

Objection has been made by the defendant to the granting of the third and fourth prayers of the plaintiff, because of the fact that these prayers did not embody the contention of the defendant as to the cancellation of the contract by use of the long-distance telephone; but that aspect of the case was fully covered by the 17th prayer of the defendant. Both parties were entitled to have their respective theories of the case presented to the jury by the instructions of the Court; had the defendant offered no prayers there would be force in the contention of the defendant that the granting of the third and fourth prayers of the plaintiff was a segregation of their case to the prejudice of the defendant; but in as much as the defendant had offered a prayer upon this very subject, the criticism now made of the plaintiff's prayer is unsound, because if such modification had been incorporated in either or both of these prayers the inevitable tendency of the granting of the defendant's seventeenth prayer would have been to obscure the issue and confuse the minds of the jury upon that which was one of the crucial points in the case.

Finding no reversible error in any of the several bills of exception contained in the record, the judgment of the Baltimore City Court appealed from will be affirmed.

Judgment affirmed, with costs to the appellant.