Annapolis Banking & Trust Co. v. Burwell

Adkins, J., delivered the opinion of the Court. Dr. Robert L. Burwell, since deceased, on August 20th, 1924, entered into a written contract with one Theodore C. Hellmers, a builder, whereby Hellmers agreed: In consideration of the sum of $5,445, “to furnish all the necessary labor and materials, exclusive of lighting plant and fixtures for the same, heating plant, etc., to construct a dwelling near Lothian, A. A. Oo., Md., in accordance with drawings and specifications to be furnished by R. L. Burwell, * * *. The party of the first part to furnish all lighting plant and fixtures and heating plant. “In consideration of the foregoing, the said party of the first part (Burwell) agrees to pay to the said party of the second part (Hellmers) payments as follows: “$1,800 when framed “$1,800 when closed in “$1,845 balance paid when house is completed and Hellmers brings releases from material men.” On or about the date of said contract Hellmers applied to the West River Branch of the Annapolis Banking & Trust Company at Galesville, Maryland, for a loan of $1,200, stating that he had a contract with Dr. Burwell to build him a home, the contract price of which was to be $5,445, but that he was short of money for financing this building until the ¹⁷⁹ building progressed far enough for him to receive his first payment, and the bank agreed to make the loan, “lending to Theodore O. Hellmers $1,200 provided he gave the bank a note signed by himself and wife and an order on Dr. Burweli to withhold $1,200 from the contract price of building his house at Lothian for the account of the West River Bank, until the account of Hellmers for the $1,200 had been settled.” On October 8th, 1924, Hellmers returned to the bank with a note dated August 27th, or 28th, 1924, signed by himself aud wife and with an order as follows: “Galloways, Md. “Sept. 8, 1924. “I)r. Robert L. Burweli, “Lothian, Md. “Dear Sir: “Will you kindly use this letter as authority from me to withhold from the contract price of building your home near Lothian, Maryland, for the account of the West River Bank, Galloways, Maryland, $1,200 until notified by the said bank that my account with them for that amount has been settled. “Yours very truly, “Theo.

C. Hellmers (Signed). “Witness: John H. Hopkins, Jr.” On the same day the bank sent this order to Dr. Burweli with a letter reciting the order and adding: “We would appreciate it very much if you would hear this in mind and protect our interests in this matter, when making your settlements with him. “We would appreciate it if you would acknowledge this letter advising that you will protect us as per authority contained in the enclosed letter * * To which, on October 10th, 1924, Burweli replied: “Your letter, enclosing an order on me from Theodore C. Hellmers to withhold for your account $1,200 out of his contract price for building my house, to hand, and this matter shall have my attention.” ¹⁸⁰ On October 8th, 1924, the day the order was delivered to the bank with the note of August 27th, 1924, the bank paid out the $1,200 to Hellmers. Defendants were permitted, over the objection of plaintiff, to introduce in evidence a letter from the counsel of the bank dated January 22nd, 1925, to Dr. Burwell, as follows : “Upon my return to my office this morning after a four months’ absence, there was presented to me some papers in connection with a loan made by the West River Bank to Theodore O. Hellmers amounting to $1,200. This loan, I understand, was made on the assumption that you would honor Mr. Hellmers’ draft for the amount of the same. “However, it seems that the form of this draft, or, rather, your acceptance of it, is not in formal shape. In order to clear up this matter of form, I am writing to ask that you give us something to the following effect Here followed a suggested form of acceptance.

Defendants, over plaintiff’s objection, were permitted also to introduce the following letter from Dr. Burwell to the West River Bank, dated January 14, 1925 : “As I told your President and Cashier several days ago that when Theodore Hellmers had finished his contract on my house and after he had given me releases from his material men that I would pay his draft on me for $1,200' if he had the funds in hand. In the meantime I think it best to return the draft. You can rest assured that before I settle with him finally I will advise you. Everything of course is moving slowly in the building line, at present.

Mr. Hellmers is well within his contract, as