Borden Mining Co. v. Barry

Bartol, J., delivered the opinion of this court. The first question presented by ihe record in this case, arises upon the demurrer of the appellee, (the plaintiff below,) to the defendant’s fourth plea, being the second plea to the first, second, third and fourth counts of the narr. The plea alleges that the appellee brought suit for the violation of the identical promises, set out in these counts, before a justice of the peace, on the 12th of September 1859, which suit was tried before the justice on its merits on the 27th of September 1859, and judgment rendered in favour of the plaintiff for $95.00 and $1.08^ costs. That the defendant, the present appellant, appealed to the next term of the circuit court for Allegany county, on the second Monday of October 1859; that both parties appeared in the circuit court, and that the court, against the remonstrance of the appellant, in that case ordered a nonpros, to be entered, and the court entered the judgment reversed without prejudice. 'We concur with the court below in the opinion that this is a bad plea; the facts set out do not constitute any estoppel against the plaintiff in this action. Under our law regulating appeals from judgments of justices [429] of the peace, the cause is taken up de novo'-in the appellate court, and disposed of in the same manner as if rip judgment had been rendered; and it is competent for a plaintiff in such a case to abandon his suit or to suffer nonpros, as in an original action, leaving himself at liberty to institute a new suit, for the same claim. The appellate court had full authority to reverse the judgment without prejudice; which placed the plaintiff in statu quo; and having done so in this case, the matters alleged in the plea constitute no bar to this suit, and the demurrer was properly sustained. The authorities cited by the appellee in argument on this point we think fully support this view. The first exception presents a question of evidence. The contract declared on was an engagement by the appellant, to employ the boat of the appellee. in carrying coal on the Chesapeak and Ohio Canal, during the whole boating season of 1859. After offering evidence tending to disprove the contract, the appellee offered to prove, “that by reason of the allowance by the canal company of greater depth or draft of water in the canal, during the season of 1859, the boats engaged, in the line of defendant in carrying coal, could carry, and did carry an average of from nine to ten tons in each load, during the season of 1859, over what the same boats had been able to carry in previous seasons.” This evidence was rejected by the circuit court, and to that action of the court, the appellant took its first bill of exceptions. In our opinion the evidence was properly rejected as irrelevant to the question at issue. The fact that, by reason of alterations or improvements made by the canal company, boats employed on the canal were enabled to carry larger cargoes in 1859 than in previous seasons, could not diminish the damages claimed by the appellee, nor inure in any way to the benefit of the appellant. On the contrary, if it could have any effect, it would be to increase the damages of the appellee arising from the breach of the contract, by the appellant; for it would result, from the facts offered in proof, that the appellee might have earned larger freights under the contract, and thus his damages be increased by its breach. On this exception we affirm the ruling of the circuit court. [430] We concur also in the propriety of rejecting the testimony offered by the appellant as to the declarations made by Lynn to the witness Morgan, embodied in the appellants second bill of exceptions. It does not appear that they were made in the presence either of the appellee or of the witness Rakes; they could not affect the rights of the appellee, nor tend to contradict or disprove the testimony of Rakes, and were therefore clearly irrelevant and inadmissible. The third bill of exceptions brings before us for review, the action of the circuit court upon the the prayers offered by the defendant below; they are sixteen in number, of which all were either conceded by the plaintiff, or granted by the court, except the tenth, eleventh and sixteenth. In the argument before this court, the sixteenth prayer was properly abandoned by the appellant’s counsel, leaving for our consideration only the tenth and eleventh prayers. By the tenth prayer the court was asked to instruct the jury, that after the failure of the defendant to furnish freight and employment to the plaintiff’s boat, “it became the duty of the plaintiff to use all reasonable and proper exertions to render his loss as light as possible; and that it would be a proper use of such reasonable exertion to get rid of the expenses of keeping hands to run said boat, and to keep the horses in a manner least expensive, consistent with their well-being.” This prayer was properly refused. The duty of- the plaintiff, after the breach of the contract by the defendant, was to “use all reasonable and proper exertions, in the use and disposition of his boat, stock and hands, to save himself from loss or render the same as light as possible,” and so the jury was instructed in the ninth prayer conceded by the plaintiff; but it is an error to suppose, that it was, in law, the duty of the plaintiff to keep his boat and horses unemployed and to dismiss his hands, and it would have been error so to instruct the jury. See Benson Trundy vs. Atwood, 13 Md. Rep., 21. The only remaining question on this appeal, arises upon the eleventh prayer, which was rejected by the circuit court. This prayer relies upon a variance between the contract alleged, and the contract proved, as fatal to the plaintiff’s action. [431] The contract declared upon is, that “in consideration that the plaintiff would run his canal boat in defendant’s line of boats in freighting coal for it, it, the defendant, promised to employ the boat during the entire season, and would pay the plaintiff freight at the rate of $1.15 per ton;” the breach alleged is, “that the defendant wholly neglected to load and unload the boat.” The proof tended to show that the rate of freight to be paid was $1.15 per ton, or current rates, which meant such rates as might be usually paid by the companies freighting coal, liable from time to time, to fluctuation and change. The appellant’s eleventh prayer asked the court to say to the jury, that if they believed the rate of freight to be paid per ton, was, by the contract, $1.15, or current rates, then the plaintiff could not recover, because the narr. stated the rate to be $1.15, absolutely. The appellant contends, iu support of this prayer, that the contract being entire must be set out as made. In considering this point we may, with propriety, quote the language of Chief Justice Marshall in Sheehy vs. Mandeville, 7 Cranch., 217: “Courts being established for the purpose of administering real justice to individuals, will feel much reluctance at the necessity of deciding a cause on a slip in pleading, or on the inadvevtance of counsel. They can permit a cause to go off on such points, only when some rule of law, the observance of which is deemed essential to the general administration of justice, peremptorily requires it.” In this case there is no such rule of law to control our decision in favor of the appellant. Upon a careful examination of the authorities cited, we find no case going so far as to declare the variance now insisted on to be material. .11 was not necessary for the maintenance of the action to set out in the narr. tile rate or amount of freight agreed to be paid; the suit was not brought to recover freight earned; but the breach alleged was, the failure of the defendant to load and unload the boat of the plaintiff. That part of the contract which constituted the ground or gravamen of the action is properly stated, and also the consideration for the defendant’s promise, which would seem to be all that the rules of pleading require. 1 Chitty's. [432] Pl., 299, 308, 314, 317. Even if it were conceded, as contended for t>3r the appellant, that although it was not necessary to set out in the declaration the rate or price of freight to be paid, yet having undertaken to do so it was necessary to allege it as proved, and a material variance would be fatal, still, we should hold that, (here is no substantial variance in the case presented. The proof shows that the current rates were, in fact, $1.15 per ton, and “the rule of pleading is, .that a contract must be stated according to its legal operation, and if the evidence proves it according to that legal operation, it is sufficient;” per Bayley, J., in Wickes vs. Gordon, 2 Barn. & Ald., 338. Being of the opinion that the alleged variance was immaterial we think the eleventh prayer was properly refused. (Decided Oct. 29th, 1861.) Judgment affirmed. In the case of The Borden Mining Company vs. Hamilton Downs, the cause of action and pleadings were similar to those in the above case, and the question presented on the pleadings and prayers were the same, and the cause was argued by the same counsel. Bartol, J., delivered the opinion of this court. This appeal presents the same questions as were decided in the case of The Borden Mining Company vs. John Barry, (ante, 419,) and for the reasons assigned in the opinion filed in that case, the judgment below will be affirmed. Judgment affirmed* (Decided Oct. 29th, 1861.)