necessary to extend this opinion by discuss- chase price and the amount realized at a resale ing the subject further.

by the broker, the buyer when testifying as a The result is that the decree appealed witness for the broker, stated that he thought he had read in newspapers a quotation as high as $419 after the end of 1911, but that he could not name the newspaper, a paper purporting to give bids for the stock in 1911 was properly excluded on cross-examination because not ger

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

sented to the jury by the instructions, and in- I that it was only requisite to show that the structions of a party are not objectionable for failing to embody the contention of the adverse party presenting a requested charge thereon. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 646, 647; Dec. Dig. § 258.*]

Appeal from Baltimore City Court; Henry D. Harlan, Judge.

Action by Dudley A. Tyng & Co. against Frederick E. Woodward. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

C. Howard Millikin and Arthur L. Jackson, both of Baltimore, for appellant. Thomas F. Cadwalader and Horace S. Whitman, both of Baltimore, for appellee.

STOCKBRIDGE, J. 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, 88 Atl. 243) 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 19 bills of exception, but at the argument the first, fifth, sixth, seventh, sixteenth, seventeenth, and nineteenth 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 50 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;

property was sold for a fair price; that to
have offered the stock at public auction un-
der 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
Judge
proper instruction from the court.
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 can-
not 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.

[1] The measure of the duty of Tyng & Co. is aptly expressed in Brownlee v. Bolton, 44 Mich. 218, 6 N. W. 657, 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 Wis. 648, 92 N. W. 368.

[2] 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, 56 S. E. 88, 7 L. R. A. (N. S.) 1184.

[3] 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, 64 Atl. 286, 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

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

or improper evidence admitted. This involves as the next step a consideration of the rulings of the trial court upon the questions of evidence.

[4] 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.

[5] 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.

[6] 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 2, 1912, by a Mr. Wenger, purporting to give certain offerings, or of bids for the Burroughs stock of September 6 and September 12 and 14, 1911. How, 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.

[7] The tenth exception was to the offer in evidence of a letter purporting to be written on September 6, 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.

[8] 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. Diffenderffer, 50 Md 466; Lewis v. Clark, 86 Md. 327, 37 Atl. 1035.

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.

[9,10] 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 For this reliance is had on the case of Cumberland Glass Co. v. De Witt, 120 Md. 381, 87 Atl. 927, and upon the language used by Judge Burke in that case, with regard to the admissibility of the deposition of a witness: First, 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, 23 N. E. 428, 19 Am. St. Rep. 30, and McIntyre v. People, 227 Ill. 26, 81 N. E. 33. 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 Weatherford Co. v. Duncan, 88 Tex. 611, 32 S. W. 878, 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 notined 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 5 prayers and the defendant 27, 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 third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth prayers there were withdrawn from the consideration of the jury the first 10 counts of the declaration, and, these prayers being granted, the defendant's thirteenth, fourteenth, fifteenth, and sixteenth prayers were rendered unnecessary.

[11] The defendant's seventeenth and eighteenth prayers were alternative forms of stating defendant's contention, and, the seventeenth prayer having been granted, the eighteenth was properly refused.

The nineteenth, twentieth, twenty-first, twenty-second, twenty-third, and twentyfourth 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 twenty-fifth and twenty-sixth '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 twenty-fifth prayer, which granted, it became unnecessary to grant the twenty-sixth.

The twenty-seventh prayer of the defendant related to the question of fraud in the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes