Blumenthal v. Heron

Barnes, J., delivered the opinion of the Court. The Circuit Court for Montgomery County (Joseph M. Mathias, J.), sitting without a jury, entered a judgment for $1,936.54 and costs against the appellant, Harvey Blumenthal, the defendant below, in favor of the plaintiffs below, Alexander M. Heron and Julian B. Heron, appellees in this Court. The principal issues before us are (1) in regard to the sufficiency of the evidence to justify the trial court’s finding of an oral promise by Blumenthal to satisfy a judgment in favor of the appellees against the M.Q.F. Corporation (MQF) ; (2) whether the oral promise is unenforceable because of the provisions of Sec. IV (2) of the Statute of Frauds; (3) the alleged failure of the contract (a) for want of consideration and (b) its alleged obtention by economic duress. On August 8, 1968, the appellees obtained a judgment in the Circuit Court for Montgomery County for $2,350.-00 and costs against MQF.

The appellees, on March 13, 1969, directed the Sheriff of Montgomery County and his deputies to proceed under a writ of fieri facias to levy on certain laundry and dry cleaning coin boxes at stores in Silver Spring Norge Village and Bethesda Norge Village, which the appellees believed were owned by MQF. During the course of the levy, the Deputy Sheriff seized one coin box at the Silver Spring Norge Village store which contained $97.00' in cash. Blumenthal, who was then at his retail liquor store at 5544 Connecticut Ave ²³⁷ nue, N.W., in the District of Columbia (he had been in the retail liquor business for 26 years), was telephoned by the manager of the Silver Spring and Bethesda stores that the levy had been made on the equipment. Blumenthal then telephoned Charles W. Foster, Esquire, counsel for the appellees, and inquired if there was anything that could be done to stop the levy.

Mr. Blumenthal stated, according to Mr. Foster, that “he was in the process of selling these businesses and that further proceedings would delay or completely ruin the sale.” Mr. Foster informed Mr. Blumenthal that he had his instructions from his client, Alexander M. Heron, Esquire, a member of the Bars of the District of Columbia and of Maryland and who had practiced in both jurisdictions for some 42 years (principally in the District of Columbia), and would have to have additional instructions from Mr. Heron if the attachments were to be stopped. Mr. Foster suggested that Mr. Blumenthal communicate directly with Mr. Heron, which Mr. Blumenthal forthwith did by telephone. Mr. Heron and Mr. Blumenthal differ in regard to what was said during their telephone conversations. Mr. Heron was not in his office at the time of Mr. Blumenthal’s telephone call.

When he returned to his office, there was a message to call Mr. Blumenthal and he did. Mr. Heron testified that he was informed by Mr. Blumenthal that, “Deputy Sheriffs had levied attachments in the two places which were operated by the M.Q.F. Corporation.” He stated that Mr. Blumenthal then said that: “. . .he was in the course of negotiations which he hoped would enable him to retrieve or recover his investment in that corporation and that the effect of the attachments would probably be to defeat or cause those negotiations to fail. He was quite anxious that the attachments be lifted.” The telephone conversation then continued: “I [Heron] asked him [Blumenthal] to call ²³⁸ Mr. Foster, and he said that he’d already called Mr. Foster but he would do nothing about the attachments without my direction. “Mr. Blumenthal then proposed that the judgment be paid at the rate of a hundred dollars a week and that he would be responsible to see that the payments were made. He said that he thought that the earnings of the company would be sufficient to justify the payment of a hundred dollars a week. “I told him that I would do nothing about it until I’d first consulted with Mr. Foster. “I called Mr. Foster and talked with him and then, somewhat later, I called Mr. Blumenthal back and told him that upon the understanding that he would be personally responsible for the payment of the judgment and would stand behind the hundred-dollar payments we would go ahead and accept payment on that basis and have the sheriffs withdraw and the attachment proceeding withdrawn.” Mr. Blumenthal then indicated that he had an investment in MQF.

Blumenthal during a later telephone conversation with Heron proposed that $100.00 a week be paid to liquidate the judgment debt. Heron “stated to him that this would be upon the understanding that he would be personally responsible for the payment of the judgment. And he acquiesced in that.” Mr. Blumenthal, on the other hand, testified that he did not promise to be personally liable for the payment of the judgment debt. He stated that he told Mr. Heron that he believed that “the business could handle a hundred dollars a week approximately out of proceeds,” that is “out of the moneys taken in out of the operation.” He further testified that he owned one-third of the stock in MQF, which, however, had had its charter forfeited for non-payment of taxes [articles of revival had been prepared but not filed] and that Blumenthal’s interest “was ²³⁹ simply to do what could be done to protect the liability that I had on the Central Leasing leases” [the corporation that had leased the laundry equipment to Blumenthal] .

In any event, four payments of $100.00 each were paid at Mr. Foster’s office for the account of the appellees. Mr. Foster testified on cross-examination that his secretary had indicated to him that Mr. Blumenthal had personally come to the office to make payments. Mr. Blumenthal denies that he personally went to Mr. Foster’s office, but that it was possibly a Mr. Womple, operator of the business, or one of the employees of the business. The trial court resolved the conflict in the testimony in favor of the appellees and, as indicated, entered judgment in their favor for $1,936.54 and costs, the amount of the MQF judgment of $2,350.00 plus court costs of $98.30, a total of $2,448.30 less credits of $511.76.

(1) Pursuant to Maryland Rule 886 we will review both the law and the evidence in an action tried by the lower court without a jury but the judgment of the lower court “will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” We have set out in some detail the conflicting evidence of the parties and need not repeat it here. Judge Mathias in considering this aspect of the case, stated in his written opinion: “We are called upon to decide as between two witnesses whose testimony is the more credible. We are mindful, of course, that the burden of proof is on the plaintiffs and that to meet this burden their evidence must be the more convincing and carry the most weight. We have had the opportunity to observe the demeanor of the witnesses and to judge their credibility, not only on ²⁴⁰ the basis of what they said but also on their manner of saying it.

We are entitled to consider the plausibility of the witnesses’ testimony and whether or not they might have reason for not telling the truth. We are entitled to believe all, part or none of the testimony of either witness. After fully considering all the facts and circumstances we find the defendant’s testimony to be implausible. We accept the testimony of the plaintiff, Alexander Heron, and find the defendant did make an oral promise to pay the debt of the corporation, in which we find he had a substantial interest.” We think it is apparent that we should not say that the lower court’s finding was clearly erroneous.

(2) By Section IV, Subsection 2 of the Statute of Frauds, 29 Car. 2, Cap. 3 effective in 1677 and still in force in Maryland, see 2 Alexander’s “British Statutes in Force in Maryland,” (Coe’s ed.), p. 690, no action shall be brought “whereby to charge the Defendant upon any special Promise to answer for the Debt, Default or Miscarriages of another Person * * * unless the Agreement upon which such Action shall be brought, or some Memorandum or Note thereof, shall be in Writing, and signed by the Party to be charged therewith, or some other Person thereunto by him lawfully authorized.” Blumenthal contends that the oral promise in the present case cannot be enforced because of the provisions of Section IV (2). We do not agree with this contention. In the construction of Section IV (2), it is well settled in Maryland, as elsewhere, that if the oral promise is made by the promisor to serve some purpose of his own rather than to answer for the debt of another person, the oral promise is not within Section IV (2). We reviewed the Maryland Law in