Auburn Shale Brick Co. v. Cowan Building Co.

Briscoe, J., delivered the opinion of the Court. At the conclusion of the testimony, on both sides in this ease, the Court below granted at the instance of the defendant the following prayer: The defendant prays the Court to instruct the jury that under the pleadings and evidence in this case the plaintiff cannot recover and their verdict must be for the defendant. The questions for our consideration are presented in the case upon a single exception, and that is to the action of the Court in granting the defendant’s prayer, withdrawing the case from the jury and directing a verdict for the defendant. ²²³ By a stipulation of counsel, filed herein on the 11th of November, 1914, correcting the Record, it is agreed that a judgment on the verdict, in favor of the defendant, was entered by the Court on the 15th of June, 1914. From the judgment so entered, the plaintiff has appealed.

It will be seen, that the suit was in assumpsit and the declaration contained the common counts, in such actions. The defendant pleaded the general issue pleas, and the case was tried upon issue joined on these pleas. The cause of action as set out in the statement of account and bill of particulars filed in the case, shows the plaintiff’s claim to be, for a certain number of face bricks, “manufactured, bargained, sold and provided by the plaintiff for the defendant during the month of February, 1913, with the prices, dates of delivery, and car numbers and also showing credits for freight and over charge, and a balance due the plaintiff of $1,139.41.” The appellant, the plaintiff below, is a body corporate and engaged in the manufacture of bricks, at Gettysburg, Pa. The appellee, the defendant below, is also a body corporate, and is a contractor for the erection and construction of buildings, with its principal office in Baltimore City.

On the lYth day of August, 1912, the Baltimore Fidelity Warehouse Company awarded to the appellee, a contract to erect and construct for it at a cost of $165,500.00 a large warehouse building at the comer of Hillen and High streets, Baltimore, and the contract also included the furnishing of all labor and materials necessary for the completion of the building. Afterwards, the appellee, contractor, ordered from the Slingluff Supply Company, of Baltimore, face brick amounting to 225,000, to be used in the construction of the building at $14.50 per thousand. Subsequently, the Slingluff Supply Company, in turn, contracted with the appellant, to manufacture and deliver the ²²⁴ bricks necessary for tbe work, at $10.00 per thousand, /. 0: b. at the mills of the appellant, Gettysburg, Pa. The two last named contracts are not set out in the Record, but are sought to be established by correspondence in writing between the parties and by the parol testimony in the case.

It is admitted, on the part of the appellant that all of the bricks sold and delivered prior to February 1, 1913, under the alleged Slingluff contract were fully paid for, but it is contended that the 95,000 face brick, here in dispute and shipped in the month of February, 1913, were sold and delivered to the appellee under a new contract, wherein it was agreed, that the appellee should be responsible and would pay for all bricks shipped to it thereafter to be used to complete the warehouse building. It appears from the Record, that it was admitted by the appellee, in the course of the trial, in the Court below, that “we owe this money either to the Slingluff Supply Company or the Auburn Shale Brick Company. Our theory of the case is that we owe it to the Auburn Shale Brick Company, subject to any right for damages due to the failure of the Slingluff Supply Company to carry out its contract.” The contention upon the part of the appellee, in this Court, is, that the Court below was right in withdrawing the case from the jury, because, first, the evidence failed to show that there was any contract between the appellant and appellee, and, secondly, if a contract has been established it was “a collateral contract of guaranty whereby the appellee agreed to be responsible to the appellant for a debt contracted and to be contracted by the Slingluff Supply Company; or an agreement whereby the appellee agreed not to pay over any money without the consent of appellant to the Slingluff Supply Company which was or might become due under its contract with the Slingluff Supply Company,” and there could be no recovery under the common counts of the declaration. ²²⁵ It has repeatedly been held by this Court that a prayer in the form in which the defendant’s prayer was granted in this case, is too general, indefinite and submits no proposition of law, and should be refused. The prayer raises no question as to the legal sufficiency of the evidence to sustain the plaintiff’s claim, and can only be regarded as assailing the sufficiency of the declaration.

Western Md. R. R. v. Carter, 59 Md. 306 ; Dorsey v. Harris, 22 Md. 88 ; Mottu v. Fahey, 78 Md. 394 ; Sumwalt v. Knickerbocker, 114 Md. 413 ; Hobbs v. Battory, 86 Md. 72 . It is difficult to perceive, under the evidence and pleadings in this case, on what ground or theory the defendant’s prayer could, have been granted. It will be seen, that the plaintiff’s declaration is in assumpsit and in the usual form, containing only the common counts in assumpsit. If the prayer is to be treated as an attack on the legal sufficiency of the declaration, it is clear that the ruling of the Court below must be held as reversible error, because the counts in the declaration were proper and sufficient to allow a recovery, if the plaintiff could sustain the theory of its case, by the necessary proof.

There were no exceptions to the admissibility of eridenee, and there was no prayer raising the question of variance between the pleadings and the evidence, and it has been frequently held, by this Court, that a prayer of this character is too general in its terms to raise the question of variance or non-correspondence between the allegata and probata. In Cover v. Smith, 82 Md. 586 , this Court,