gating a single sale and asking, in event of | Louisville, Ky., under which 10 per cent. of the facts stated being found, a general verdict for defendants, was properly denied.

9. Trial 253 (6) Prayer prolix and overlooking facts which might have influenced the jury held properly denied.

A prayer which would be confusing to the jury because of its prolixity, and which, while setting out with great particularity much of the evidence, entirely failed to be a full statement of the facts which might have influenced the jury, properly denied.

10. Trial 307 (2)-Refusal to permit special plea to be taken to jury room not error. It was not error for the court to refuse to allow the jury to take a special plea of the defendants to the jury room.

the purchase price was to be paid cash, and the balance in six months.

The 10 per cent, was paid by Fleischmann, although the plaintiff did not pay his full contribution to the price until somewhat later. As the month of August rolled around, when the second and final payment was to become due, the plaintiff found himself unable to meet his share, and he asked Edwin M. Fleischmann to advance the money for him. It was apparently about this time that Albert J. Fleischmann came into the deal, though there is evidence from which a jury might infer that he had been a party to it before the first 10 per cent. was actually paid. However this may have been, there

Appeal from Superior Court of Baltimore undoubtedly was upon the part of one or City; Henry Duffy, Judge. "To be officially reported."

Action by J. Everett Clark against Edwin M. Fleischmann and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

Allan H. Fisher, of Baltimore (Fisher & Fisher, of Baltimore, on the brief), for appellants.

William D. Macmillan, of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellee.

STOCKBRIDGE, J. The record in this case brings up for review the rulings of the superior court of Baltimore City in a case where J. Everett Clark was plaintiff and Edwin M. and Albert J. Fleischmann were defendants.

The cause of action arose out of a purchase in February, 1918, of 350 barrels of Gwynnbrook whisky; the agreement between the parties to the suit being a verbal one merely.

both of the Fleischmanns a demand that there should be a modification of the original agreement in regard to the division of the profits, which according to the Fleischmanns was to the effect that, whatever profit was realized on a sale of the whisky at prices between $1.20 a gallon and $1.50 a gallon should go to them, they agreeing to guarantee to Clark a sale price of $1.50 per gallon. On all excess above $1.50 a gallon there was to be a division of the profit between the three parties, either into equal thirds, or five-sixths to the Fleischmann brothers and one-sixth to Clark. The attempt thus made to tie to the original agreement a new and different agreement between the parties inevitably led to a confusion of recollection as to the exact terms and nature of this agreement, so called, of August, 1918.

It was therefore proposed that this should be put in writing for the purpose mainly of avoiding any confusion or uncertainty there after. The putting of it in writing was intrusted to Mr. Albert J. Fleischmann, and it is claimed by the plaintiff that this constituted a condition precedent to any agreement. That is denied by the appellants, who have resisted Mr. Clark's suit, upon the the

oral, agreement had been entered into, and that the writing could neither add to nor detract from the agreement as made in Mr. Edwin M. Fleischmann's office.

Under the terms of that agreement theory and ground that a perfectly valid, though 350 barrels were to be bought at $1.20 per gallon, and the anticipated profit was to be looked for from a resale of it at an advanced price. Apparently the original agreement was entered into between the plaintiff and Edwin M. Fleischmann only. Fleischmann was to finance the deal, and Clark was to attend to the selling of the whisky so bought, and the profit to be equally divided between Clark and Fleischmann. The participation of Albert J. Fleischmann was apparently of later date.

The expenditure for the purchase was to be shared equally between the parties to the agreement, but before the first payment was made there was a modification of the terms upon which it was to be bought from the original vendors, S. Grabfelder & Co., of

The record presents eight bills of exception, of which the third and sixth were not dwelt upon at the argument of the case, but were in effect abandoned.

[1] The first question to consider is not a part of any of the bills of exception, but arises in this manner. To the declaration of the plaintiff there were filed, as the first and second pleas, the general issue pleas in an action of assumpsit. There was also a third plea, in the nature of a special plea, which was characterized in the brief as a plea in confession and avoidance and in the oral argument sometimes as a plea of set-off,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(111 A.)

and sometimes as a plea of recoupment., examination of this witness, where without But, since the Act of 1914, c. 393, it is of no objection he answered practically the same practical importance in which light this plea question. See Black v. Bank of Westminis viewed. In the replication to this plea ster, 96 Md. 399, 54 Atl. 88; B. & O. R. R. the plaintiff set up the theory of a condition v. Deck, 102 Md. 669, 62 Atl. 958; Parks v. precedent, and to this a demurrer was filed, Griffith & Boyd, 123 Md. 234, 91 Atl. 581; which demurrer was overruled. No valid ob- Rice v. Dinsmore, 124 Md. 276, 92 Atl. 847; jection can be maintained to this action of Furness-Withy & Co. v. Fahey, 127 Md. 337, the court, inasmuch as the question of a con- 96 Atl. 619. dition precedent first set up by the replication to the special plea could have been given in evidence under the general issue plea, on which issue had already been joined.

[2-4] The first exception of the appellant was to permitting the following question to be put to the plaintiff upon his direct examination: "Well, now, was this proposal ever consummated?" Several different grounds have been assigned to show that this was error on the part of the trial court. The ruling, however, of that court upon this exception was correct. The question might have elicited a statement of facts or a conclusion of law. That could only be told from the answer. If the answer showed a state ment of fact, it was clearly admissible; while, on the other hand, if the effect of it was to permit the witness to state a conclusion of law, it was as clearly inadmissible. The question was accordingly answered, and no motion was made to strike out the answer, or question and answer, and the same question was in effect asked and answered at a later stage of the proceeding without objection, and thus further consideration of it becomes unnecessary.

[5] The second exception was to the action of the court in overruling an objection by the defendants to permitting the plaintiff to be asked the following question:

The fourth bill of exception is claimed to have been reserved to an exhibit produced in the case of the plaintiff, designated as Plaintiff's Exhibit No. 6, which set forth in detail the amount of the plaintiff's claim, and how it was arrived at. A comparison of the figures of this claim shows it to have been made up from the defendant's third or special plea, and, as that plea might at any time have been read to the jury, it could have in no manner prejudiced the defendants that the figures were given to the jury, taken from the source already indicated.

[6] The fifth exception was reserved to the sustaining of an objection to a question put to the plaintiff on his cross-examination:

"Was there anything to prevent you from selling your one-third? A. Nothing except the fact that it was in connection with the whole deal. The whole deal was together, and I had gone into it with him."

This, taken in connection with the context, shows that the purpose of the question was to draw from the witness a statement of the witness' opinion on a question of law, and as such totally inadmissible.

[7] The seventh exception was to the ruling of the court upon the prayers, but the only ones which we are called upon specifically to consider are those offered on behalf of the defendants.

The first of these was a prayer to take the case from the jury, and render a directed verdict for the defendants. From what has already been said elsewhere in this opinion it will be clear that this prayer was in

"Now, Mr. Clark, did you understand that in connection with this proposal of Messrs. Fleischmann that this agreement was to be this proposal, the terms of this proposal were to be embodied in a written contract, and until that written contract was produced and signed by both parties did you consider your-herently bad. There were a number of quesself not bound and that the other parties were not bound?"

This was a question of much importance, since it went directly to the issue whether the reduction of the agreement to writing was a condition precedent or not. The contract, so far as there was a valid and binding obligatory contract, depended upon the terms of the instrument or oral agreement which showed a meeting of the minds of the parties. The contract was confessedly an oral contract, and the question was thoroughly pertinent to show whether there had been or not any meeting of the minds of the parties, and thus was a question to be passed upon by a jury upon the evidence adduced before it. This action of the court was therefore entirely proper. This is made the more manifest by a perusal of the cross

tions which it was the province of the jury to pass upon, as, for example, whether there was or was not a valid contract entered into in August, 1918, and, if there was, what the terms of it were.

[8] The second prayer was equally vicious, in that it segregated a single sale of whisky out of the 350 barrels, and asked that, in the event of the fact stated in that prayer being found by the jury, the verdict must be a general verdict for the defendants. It has been so frequently decided by this court that a prayer is fatally defective which makes this attempt that the citation of authorities on this would be superfluous.

What has been said of the defendant's second prayer applies equally to the defendant's third prayer.

[9] The fourth prayer presented on behalf

(79 N. H. 510)

GOSSELIN v. GRIFFIN. (No. 1673.) (Supreme Court of New Hampshire. Hillsborough. Dec. 7, 1920.)

of the defendants was extremely prolix, and the jury would be sorely perplexed as to the verdict they should render under a prayer drawn as this one was. But it is open to a still further objection, in that, while setting out with great particularity much of the 1. Appeal and error 992-Review of ruling evidence in the case, it entirely omitted or on evidence of transaction with deceased. failed to be a full statement of all of the Under Pub. St. 1901, c. 224, § 17, relating facts testified to and which might have in- to evidence admissible on transactions with defluenced the jury, and it was therefore prop-ceased persons, the ruling as to excluding erly rejected. plaintiff's testimony, including the proposition would be done thereby, may be excepted to and that it did not clearly appear that an injustice

[10] The eighth exception is to the refusal

of the trial court to allow the jury to take with them to their room when they retired the third or special plea of the defendants. No error, however, can be predicated upon this refusal.

The third or special plea is claimed by the defendants as a plea of set-off, and, if it were such, the plea might be held to amount to a declaration of the defendants' claim against the plaintiff. As already suggested, this plea was in its nature one of recoupment, rather than set-off, and it must therefore in this exception be considered in that light.

In his volume on Practice (section 328) Mr. Poe says that the jury may "take with them the pleadings and the court's instructions, but no other papers whatever, except by consent of counsel. A violation of this rule will cause their verdict to be set aside."

revised.

2. Witnesses 182-Competency of servant as to acts and conditions at time of injury, where deceased employer not present stated.

there was evidence that the deceased employer In servant's personal injury action, where was not present when the accident occurred, the plaintiff should have been allowed to testify to his own acts at and just before the injury, in view of Pub. St. 1901, c. 224, §§ 16, 17, permitting such testimony only where injustice would otherwise occur; but where it did not appear that decedent did not know the condition

of the machine, plaintiff was not a competent

witness on that question.

3. Trial 48 Offer of testimony in suit against estate of deceased held properly limited to acts not within knowledge of decedent.

In servant's action against estate of deceased master, offer by plaintiff, tending to time of injury, was tantamount to limitation show that deceased master was not present at that his testimony of how the accident occurred, later offered, would relate only to matters not within knowledge of decedent. 4. Witnesses

180-Objection to entire testimony held improperly sustained.

In servant's personal injury action against

jection to plaintiff testifying to anything occurring in the master's lifetime was improperly sustained, where plaintiff could testify to some fact of that class.

In a note to this section that author cites the cases of Ingalls v. Crouch, 35 Md. 296, Moore v. McDonald, 68 Md. 333, 12 Atl. 117, and Hitchins v. Frostburg, 68 Md. 100, 11 Atl. 826, 6 Am. St. Rep. 422, and adds the further note that "in Baltimore City the practice is to give to the jury the declaration only, and the court's instructions." In section 328a Mr. Poe says that there is no stat-the estate of deceased master, defendant's obute on the subject, and the matters rest largely in the discretion of the court. And he again cites the Moore Case and the Hitchins Case, already mentioned. In the Moore Case, which was a caveat to a will, the jury asked for the original will, and this was refused, and the ruling making the refusal was sustained by this court. In the Hitchins and Frostburg Cases it was held that the giving of papers to the jury was discretionary with the trial court, and was not reviewable upon appeal. The rule as stated by Mr. Poe is also laid down in Thompson on Trials, § 2582, where it is said:

"It is the duty of the court to state the issue, and it is error to refer jurors to the pleadings to find what the issues are: it would seem on principle to be a proper rule of practice not to send the pleadings out with the jury. But the general practice is believed to be to the contrary"-citing State v. De Long, 12 Iowa, 453, and Wright v. Rogers, 3 N. J. Law, 547.

The judgment appealed from will accordingly be affirmed.

Judgment affirmed, with costs.

Transferred from Superior Court, Hillsborough County; Allen, Judge.

Action by Zepherin Gosselin against Willard H. Griffin. Nonsuit ordered subject to exception, and case transferred from the superior court. New trial granted.

Case, for negligence, brought under the provisions of the Employers' Liability Act (Laws 1911, c. 163). At the close of the plaintiff's evidence a nonsuit was ordered subject to exception. The defendant died after the accident and before the trial. The plaintiff was injured while operating a dieing out machine in the defendant's shoe shop. The plaintiff called a witness who testified that he was working near the plaintiff, heard his outcry when injured, and that the defendant was not anywhere near them. The plaintiff was then called as a witness in his own behalf. The defendant's counsel

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(111 A.)

Thomas J. Bois and Taggart, Tuttle, Wy man & Starr, all of Manchester (L. E. Wyman, of Manchester, orally), for plaintiff. Warren, Howe & Wilson, of Manchester (De Witt C. Howe, of Manchester, orally),

for defendant.

stated that the defendant executor elected as soon as the plaintiff was called to the not to testify, and objected to any testimony stand. The objection did not in terms refrom the plaintiff covering anything that fer to any statute, and was based upon the took place before the decedent died. This broad proposition that the plaintiff could objection was sustained, and the plaintiff's not testify to "anything" occurring in the offer of his own testimony how he got hurt decedent's lifetime. If for any reason or was excluded, subject to exception. by virtue of any statute, the plaintiff could objection was so far unsound. The plaintiff's testify to any fact of that class, the sweeping testimony having been rejected by the ruling sustaining the defendant's position, it was not incumbent upon the plaintiff to go further with his offer. His exception fairly raises the question whether he could testify PEASLEE, J. to any fact occurring in Griffin's lifetime, [1] The ruling excluding the plaintiff's testimony included the proposi- conduct may supply the deficiency now claimAs the plaintiff's testimony as to his own tion that it did not clearly appear that injus-ed to exist in the evidence, or may change tice would be done thereby. Ordinarily this the aspect of the case wherein the defendant finding by the trial court would be conclusive, claims fault of the plaintiff is conclusively if supported by sufficient evidence. But by shown, those questions have not been conthe provision of the statute applicable here the conclusion reached by the presiding jussidered. tice may be excepted to and revised. P. S. c. 224, § 17; Simpson v. Gafney, 66 N. H. 261, 20 Atl. 931. Such an exception brings to this court questions of fact as well as those of law.

New trial.
All concurred.

(79 N. H. 512)

GOY v. DIRECTOR GENERAL OF RAIL-
ROADS. (No. 1694.)

ough. Dec. 7, 1920.)

I. Appeal and error 992-Findings of fact, supported by evidence, conclusive.

[2] At the time the plaintiff was offered as a witness there was evidence in the case (Supreme Court of New Hampshire. Hillsborwhich appears to us to prove that the decedent was not present when the accident occurred. From this it follows that the plaintiff should have been allowed to testify to his own acts at and just before the time he was injured. As it does not appear that the decedent did not know the condition of the machine, the plaintiff was not a competent witness upon that question. Cobb v. Follansbee, 79 N. H. 205, 107 Atl. 630, and cases cited.

Court's finding of fact as to competency of children as witnesses, where supported by the evidence, is conclusive.

2. Witnesses 45 (2)—Children, to be competent to testify, must be conscious of duty to speak truth.

Young children, to be competent witnesses, must be conscious of the duty to speak the truth.

3. Negligence 121(5)—Plaintiff must prove cause of injury.

To recover for injuries, plaintiff must prove that the alleged breach of duty contributed to cause accident.

4. Railroads ~400(6) Proof of negligent lookout as to child insufficient to take case to jury.

[3] The defendant claims that the exception only raises the question of the general competency of the plaintiff under Public Statutes, c. 224, § 16; and that there was no offer to bring his testimony within the exception provided by section 17. The record does not sustain this position. Upon the offer of the plaintiff as a witness the defendant objected to permitting the plaintiff to testify to "anything that took place before the decedent died. This objection was sus- In an action for injuries to a boy, struck by tained, and the plaintiff's offer of his own a train in a railroad yard, proof of negligence testimony how he got hurt was excluded, in not maintaining a lookout on the rear of the subject to exception." Before this occurred car held insufficient to take plaintiff's case to the plaintiff had introduced the evidence the jury, in absence of evidence that, if a lookwhich tended to show that Griffin was not an out had been maintained, it would have prevented the accident. eyewitness to the accident. If it was necessary for the plaintiff, when offering himself as a witness, to indicate that he proposed to testify to such facts only as were not within the knowledge of the decedent, his previous course in the trial was tantamount to such a limitation of the offer.

5.

Railroads 359 (2)—Boy playing in railroad yards entitled to reasonable care.

A railroad's duty toward a boy playing in a railroad yard is merely to use reasonable precaution not to injure boy.

Transferred from Superior Court, Hills

[4] The defendant interposed his objection borough County; Kivel, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Action by Charles Goy, by his next friend, against the Director General of Railroads. Judgment of nonsuit, and plaintiff excepts, and case transferred. Exceptions overruled. Case, for negligence. Trial by jury. the close of the plaintiff's evidence a nonsuit was ordered, subject to exception.

At

The accident happened in the yard of the Boston & Maine Railroad, near Temple street, Nashua. At this place there are three parallel tracks, which are used for storing and shifting cars. The locality was commonly used by boys as a playground. The accident happened about 7 o'clock, standard time, on the evening of April 30, 1918. The plaintiff was then 6 years old and was accompanied by another boy, Charles Allison, who was 7. No testimony of any eyewitness to the accident was introduced; but upon cross-examination of the plaintiff's father he was permitted to state what the boys had told him about it. From these statements it appeared that the boys entered at Temple street, crossed all three tracks, picked up some numbered slips of paper, and started back. The Allison boy was ahead, and a car struck the plaintiff as he was crossing the last track, knocked him down, and ran over his foot. He did not see the car before it struck him.

Warren, Howe & Wilson and De Witt C. Howe, all of Manchester, for defendant.

PEASLEE, J. [1] The plaintiff offered himself and the Allison boy as witnesses. They were 6 and 7 years old, respectively, at the time of the accident, which occurred some less than 2 years before the trial. They were both examined at length upon the voir dire, were found not competent and were rejected by the court, subject to the plaintiff's exception. The issue was one of fact, and the finding of the presiding justice is conclusive, if State v. there was evidence to support it. Tetrault, 78 N. H. 14, 15, 95 Atl. 669, Ann. Cas. 1918B, 425, and cases cited.

It is admitted that there was evidence to sustain the conclusion reached, but it is argued here that the statements made by the presiding justice show that he in substance found the Allison boy to be qualified, or that When the an improper test was applied. ruling of exclusion was first made, the court said:

"If it were a murder case, I might feel a little different."

Upon a subsequent offer he said that he meant a case where the witness was the respondent. There is nothing in this to show Whether a that the law was misapplied. more favorable rule could rightly be invoked in the supposed case is immaterial here. It was stated in terms that each witness was found to be incompetent. Upon this finding it was the duty of the court to exclude their

There were several box cars standing on each of the other two tracks, near the place of accident, but there was no evidence as to their exact location. In shifting cars in and out of these sidings, the railroad employees either ride the cars or go alongside on foot. None of the crew at work there that night knew of the accident until told of it some testimony. hours later.

The plaintiff offered himself and the Allison boy as witnesses. Both were found to be incompetent, and their testimony was excluded, subject to exception. In excluding the Allison boy, the court said:

[2] It is further argued that, because the presiding justice stated that Allison was “a bright boy," it follows that possession of such qualities as made him a competent witness was shown, and that in view of this finding it was error to also find the witness not competent. But in addition to "capacity to un

"He is a bright boy; no doubt about that; but I feel that I should not allow him to tes-derstand questions put, and to frame and extify. Here the rights of parties are to be considered, and this is different from a life and death case. If it were a murder case, I might feel a little different; but as to property rights, injury to person, not involving life or life imprisonment, or something of that kind, I feel different. I am constrained to rule that way. I find that he is not competent, and I exclude his testimony as a matter of discretion."

Later in the trial the plaintiff renewed his offer as to the Allison boy, and the court said: "The decision arrived at in open court yesterday was based upon all of the answers of the child, and particularly it was based upon his

answer to me where he undertook to state that he would be punished by God, I think he said, if he told a lie; that answer was really what controlled me in refusing to allow you to put the boy on the stand."

press intelligent answers," there must also "be a sense of moral responsibility, a consciousness of the duty to speak the truth." Wig. Ev. § 506. The remark that the general finding of incompetency was particularly based "upon his answer to me when he undertook to state that he would be punished by God," indicates that while mental capacity was found to exist the court was convinced that the boy had no sense of moral responsibility. The record discloses no error in the exclusion of evidence, and the exception to the order of nonsuit must be disposed of upon the evidence which was admitted at the

trial.

[3, 4] In order for the plaintiff to recover he must show that the alleged breach of duty towards him had some part in causing the accident. Assuming that upon the evidence it could be found that the defendant was in

Osgood & Osgood and Anson C. Osgood, all fault in not maintaining a lookout upon the of Manchester, for plaintiff.

rear of the car that was being moved up this