Clemens v. Mayor of Baltimore

Bartol, J., delivered the opinion of this court. This action was instituted by the appellees against the appellant. The declaration contains the common money counts, a count for work and labor, and an insimul computassent count. The defendant pleaded the general issue. [211] The bills of exceptions state: “That the plaintiff proved by Win. H. Cowan, a competent, witness, that the defendant promised to pay the amount of the claim in this case, which amount the witness only knew from the bills that he had seen, some three or four of which bills he (witness) knew, had been served on the defendant, and he believed the amount to be about four hundred dollars; but that he knew well, the sum in the bills, and the inquisition heretofore taken in this case, correspond, and that the sum promised to be paid by the defendant, was some twenty-five dollars less than the amount of the said bills and inquisition. The cestuis que use were pavers, and the claim is for paving Fulton street for the plaintiff. The plaintiff then offered in evidence the following: (Here insert the record from the City Commissioners.) uMemorandum. — -The clerk having repeatedly called on the plaimifFs counsel for the record from the City Commissioners (referred to above) has been unable to obtain the same, up to the present time. “Before the reading of the record of the Commissioners of Streets, as produced by the clerk of said commissioners, he, the said clerk, deposed that the original papers and proceedings, in the matter of paving Fulton street, had been lost, and that he could not find them, though he had repeatedly made diligent search for them in the place where such papers should be. The defendant offered in evidence the Ordinance of the city of Baltimore, No. 15, entitled, ‘An Ordinance establishing a system for grading, paving and repairing the streets, lanes and alleys in the city of Baltimore.’ ” This constitutes the whole evidence in the case. The defendant presented two objections to the record book of the city commissioners: 1st. That it was not evidence to prove to the jury that the proprietors of a majority of feet of ground on Fulton street, made an application to pave Fulton street, as in said book set forth. 2nd. That said book was not evidence that the Mayor of [212] the city of Baltimore approved, &c., as required by the 4th section of Ordinance, No. 15. These objections were overruled by the court below. In the absence of the record book of the proceedings of the city commissioners, this court cannot decide upon the propriety of the refusal by the Court of Common Pleas, to sustain the objections made by the defendant. • The presumption is that the court ruled correctly, and unless there be error disclosed on the record its action will be affirmed. Burtles vs. The State, use of Turner, 4 Md. Rep., 277. Reynolds vs. Negro Juliet and others, 14 Md. Rep., 118. See, also, Duvall vs. Peach, 1 Gill, 173. Thomas vs. Catheral, 5 G. & J., 23. The defendant offered five prayers, all of which were refused; these are contained in the first bill of exceptions. We find no error in the action by the court upon these prayers. The testimony of Mr. Cowan, the witness, proved that the bills for paving had been served on the defendant, and although he could not speak froth recolle/tion of the precise amount, he stated positively that the bills served on the defendant corresponded in amount with the inquisition formerly taken in this case, which the record shows was $491, on the 5th of June 1857. Mr. Cowan further proved that the defendant promised to pay the amount of the bills, less about $25. We think that testimony was sufficiently definite to enable the jury to find the sum for which the defendant was bound, and, therefore, the first prayer was properly refused. The second prayer' has been based, in the argument, upon the decision of the Court of Appeals in The Mayor and C. C. of Balto. vs. Hughes’ Adm’r, 1 G. & J., 480. But there is nothing in that case to authorize the instruction asked for in the second prayer. We think this suit is well brought. The declaration contains a count on an insimul computassent, which the evidence of Mr. Cowan was sufficient to support. The presentation, to the defendant, of the bill for paving, his acquiescence therein, and his promise to pay it, was an admission by him that the necessary preliminary steps had been [213] taken by the city, and that the paving had been dono, and would authorize the jury to find a verdict for the plai ntiff. For this reason the 3rd, 4th and 5th prayers were properly refused. They ignore the facts deposed to by Mr. Cowan, and would have tended to mislead the jury. See Clements vs. Smith's Adm'r, 9 Gill, 156, 160. Wilson, Adm'r of Owens, vs. Smith, 10 Md. Rep., 67, 75. (Decided June 28th, 1860.) In the second bill of exceptions is a prayer asked by the defendant, and refused by the court, predicated of the book of proceedings of the city commissioners; upon which, as we have before stated, we are unable to decide, as the contents of the book are not disclosed. Judgment affirmed.