Buechner v. Goodman

¹³³ Shehan, J., delivered the opinion of the Court. This is an appeal from a judgment of the Superior Court of Baltimore City on a directed verdict in favor of the defendants, Alexander Goodman and Maurice Glick, copartners trading as Goodman & Glick, Attorneys at Law. C. Fred Buechner, now deceased, sued the appellees for $3,000 retained by them as a fee out of the proceeds of two checks aggregating $15,000, turned over to Alexander Goodman, one of the partners, to be held in escrow for him. The plaintiff died during the pendency of the action, and Louise M. Buechner, his wife, as his executrix, was made party plaintiff in his stead.

The action was in assumpsit under the common counts and, after the filing of a bill of particulars, the defendants interposed the general issue pleas. No question as to the partnership, the nonjoinder of plaintiffs, or misjoinder of defendants is specifically raised in the pleadings, but these questions are presented in the prayers, as was the right of the defendants to deduct this sum of money out of the funds in hand, without the consent or authority of the plaintiff, and retain it in spite of his protests and objections. The question here is whether there are facts in evidence sufficient to carry the case to the jury and to require the rejection of the prayers of the defendants for a directed verdict. The prayers were granted at the conclusion of the plaintiff’s testimony.

The defendants contend that the transaction was entirely with Alexander Goodman, individually, and not with the partnership of Goodman & Glick. The partnership, though alleged in the declaration, was not denied in the pleas, and that question cannot afterwards be considered. Code, art. 75, sec. 28 (108). The testimony supports the contention that the transaction was with Goodman & Glick and that it was the firm’s business, and consequently Maurice Glick as a partner was properly joined as a party defendant in the suit.

That the transaction was with Goodman & Glick was accepted by both of the partners. The many letters of the defendants, relating to their employment, were ¹³⁴ signed, in most part, by Goodman & Glick, but some of them by Alexander Goodman and others by Maurice Glick. The letter, signed by both these partners, of May 16th, 1935, contains this paragraph: “As to fees, we feel that at this time we should have a retainer of $300.00, and since we are to work in conjunction with Mr. Constable in bringing this matter to a consummation, we will get together as to future fees on a reasonable basis, depending on the degree of success as to the ultimate amount recovered for you.”- This clearly is evidence of the employment of the firm. Such letters and other facts not only constitute evidence of the representation of the plaintiff by the partnership, but also that charges for such services were made by them at the conclusion of the work, and a fee of $300 was demanded and received by the partnership as a retainer at the time their services began.

All of this has its conclusion in the letter of Goodman & Glick of January 29th, 1936, signed Goodman & Glick, by Alexander Goodman, in which it appears that the sum of $3,000, the recovery of which is the object of this suit, was retained by the firm as fees out of the sum of money in hand or under their control as attorneys. This item in the account, appearing in the letters, is designated “Goodman and Glick, Attorneys, for professional services, $3000.00,” and the deduction was made from the $15,000 thén in hand. The above evidence on the question of Maurice Glick’s participation in the transaction as a partner is sufficient to carry the case to the jury, on that question.' The question of nonjoinder of parties plaintiff was before the court on the evidence and the prayers. Armstrong v. Robinson, 5 G. & J. 412 ; Smith v. Crichton, 33 Md. 103 ; 1 Poe, Pl. & Pr., sec. 322.

And the evidence shows that the money in dispute was entirely that of C. Fred Buechner, and that Fritz Hill, a business associate of Buechner, had no interest in it, and to have made him a party plaintiff would have constituted a misjoinder of parties. The facts supporting this conclusion will be ¹³⁵ further discussed in considering the granting of the prayers on other grounds. C. Fred Buechner was the owner of a chattel mortgage on certain machinery and equipment of the Elk Mills Fabrics Company. This mortgage he assigned for the purpose of foreclosure to Henry Constable, Esq., an attorney at law, practicing in Elkton, Maryland.

The important question here presented arises out of the foreclosure proceedings. The mortgagee was the purchaser at the sale of the