Carozza v. Brannan

Delaplaine, J., delivered the opinion of the Court. This is a suit in assumpsit for $2,293 brought by Frank Carozza against Edward J. Brannan, administrator c. t. a. ¹²⁵ of the estate of Robert J. Cremen, deceased. The trial court, sitting without a jury, disallowed a charge for $700 for the use of a crane, and rendered judgment in favor of the plaintiff for $1,593. Plaintiff is appealing from the judgment on the ground that he should have been awarded the full amount of his claim.

In November, 1942, Carozza, a contractor, rented the crane to Cremen, who was engaged in the hauling and equipment business, for $700 a month. Cremen thereupon rented it to Arundel Corporation for the same amount. In February, 1943, Arundel Corporation returned it, and Cremen, with plaintiff’s permission, then rented it to Byrne Organization, which used it from February 10 to March 10, 1943. The evidence shows that Cremen received $1,843.37 from Arundel Corporation and $700 from Byrne Organization, making a total of $2,543.37 for the use of the crane for the whole period from November 22, 1942, to March 10, 1943.

On the other hand, it appears that plaintiff received from Cremen only $1,843.37. Thus it is evident that Cremen owed plaintiff a balance of $700 on this account. According to the evidence, plaintiff received three payments from Cremen: $700 on Janary 30,1943; $443.37 on April 2, 1943; and $700 on April 2, 1943. It is the contention of the administrator of Cremen’s estate that the word “Byrne” on the last check for $700, dated March 30, 1943, and payable to the order of Carozza, was a direction to Carozza to apply the payment on the charge for the final period from February 10 to March 10, 1943, and not as a credit on the balance due prior to that time.

The administrator claims, therefore, that plaintiff cannot recover because the declaration implemented by bill of particulars claims $700 for the period from February 10 to March 10, and the charge for that period had been paid. We recognize, of course, that a notation on a check may be either an application of payment on a particular account, or simply a memorandum for the convenience of the drawer. In Ducket v. National Mechanics’ Bank of Baltimore, 86 Md. 400, 409 , 38 A. 983, 986 , 39 L. R. A. 84, ¹²⁶ 63 Am. St. Rep. 513 , the court stated that a memorandum written on a check by the drawer for his own convenience. does not constitute a notice to the bank that the check is to be paid from, or credited to, a particular account.

It appears from the record that the final check for $700 was written and signed by Cremen’s bookkeeper, Miss Minnie Raber, not by Cremen himself. From a study of the evidence in the