Smith v. Crichton

Stewart, J.,

delivered the opinion of the Court.

Exceptions have been taken by the appellant in this case to the ruling of the Court below, in the refusal to grant his three several prayers, and to the verbal instructions given, including the form, as well as the substance of them.

The first prayer involves the question whether the plaintiff, having sued the defendant upon a cause of action alleged to be due alone to the plaintiff, can recover under the pleadings, if, upon proof, it appears to have been a claim due the partnership, of which the plaintiff was a member; and whether the defendant can avail himself of such defence unless by plea in abatement.

It is a well settled principle that all the parties composing a firm must be named as plaintiffs, unless they are dormant partners, and the omission so to describe them may be taken advantage of by the defendant, under the plea of the general issue, and in actions upon contract, if the cause of action be joint, all the parties, if alive, must join, and where the action is broijght by one of several with whom the contract was made, the defendant can avail himself of the defect, upon evidence at the trial, under the plea of non assumpsit. The alie *107 gata and probata must agree, and the plaintiff here, claiming in his individual capacity, must sustain his demand as such, and is not entitled to recover upon a cause of action due to him and others, and the pleadings giving notice of the individual account, the defendant has the right to interpose the objection at the trial, under the general issue, to the competency of any such testimony, without resorting to' plea in abatement.

This well established rule is not affected by the provisions of the Code, Art. 75, sees. 26 — 28, in reference to the right of amendment, or by the form of a plea in abatement as prescribed in the 83d division of sec. 22, of the same Article.

Assuming there was conflicting testimony as to the true character of the cause of action, and whether it constituted an individual or partnership account, the purport of which it was the province of the jury to determine, upon pertinent instructions from the Court as to the law applicable thereto when their interposition was invoked, we think there was error in the Court below in the refusal of the defendant’s first prayer. Mitchell vs. Dall, 2 H. & G., 171 ; Armstrong vs. Robinson, 5 G. & J., 412 ; Hoffar vs. Dement, 5 Gill, 132 ; Wallis vs. Dilley, 7 Md., 250 , Oelrichs vs. Artz, 21 Md., 531 .

The second and third prayers of the defendant were properly rejected, because there was no proof in the record to sustain them, or to shew that the plaintiff vras responsible to the defendant for not having made sale of the stock referred to therein.

Under such circumstances they were mere abstract propositions, not founded upon any testimony in the cause.

Under the view we have stated as to the error in the refusal of the defendant’s first prayer, it becomes unnecessary to review the propositions announced by the Court in the verbal instructions.

The exception as to the form of the instruction, being verbal, when the defendant’s prayers were in writing, cannot bo supported.

*108 (Decided 30th June, 1870.)

Where the instruction is definite, and contains sound views of the law applicable to the case and intelligible to the jury, it can make no assential difference whether it is communicated to them in writing or orally.

It is true, that in the trial of causes, and the exposition of the law to the jury, the reduction of the instruction to writing is certainly more formal, less liable to hasty error, and may enable the Court the better to mature their views, and moi’e distinctly and formally to express them to the jury as a general rule; but still the law may be sufficiently expounded to the jury through oral instructions. No doubt the Court would not hesitate, where it was requested, and deemed by the counsel to be material, to embody their views in writing, in advance of any oral communication to the jury. This matter, however, is left to the sound discretion of the Court below, and is not the subject of review by this Court.

When verbal instructions are given to the jury, it is certainly the right of the party who desires to except thereto, to have them reduced to writing, so that they may be reviewed on appeal, as was done in the present instance; and when that is the case it is no good cause of complaint, that the Court, in its discretion, chose in the first instance to instruct the jury orally.

Judgment reversed, and new trial awarded.