Carroll v. Bowen

Briscoe, J., delivered the opinion of the Court. The record in this case fails to disclose the entry of a final judgment in the Court below from which an appeal could have been taken, but by an agreement filed in the ease on the 9th of February, 1910, it is agreed by the counsel of record, that the record shall contain the following entry as of date prior to the order of appeal filed herein: “Plaintiff’s motion and demurrer overruled and judgment for costs for the defendants for want of replication to the fourth and additional plea.” The suit was brought in the Circuit Court for Calvert County, on the 4th day of April, 1907, by the appellant against the appellees to recover damages for the alleged failure of the appellees to furnish, provide and “erect suitable masonry work,” for the appellant, in the erection, construction and completion of a certain church building, known as ¹⁵² Emmanuel M. E. Church, South, which the appellant had contracted to huild for the appellees. The record of proceedings in the case was subsequently, on the 9th day of Rovember, 1908, removed to the Circuit Court for St. Mary’s County for trial and from a judgment in favor of the defendants, as herein stated, this appeal has been taken. The amended declaration and the one upon which the case was tried, is as follows: The plaintiff sues the defendants, the Building Committee of Emmanuel M. E. Church, South, “for that the said plaintiff and defendants, on the 19th day of September, in the year nineteen hundred' and one, entered into a written agreement, signed and sealed by the said plaintiff and the said defendants, under which the said plaintiff bound himself to erect for the said defendants in Calvert County a certain church building, to be known as Emmanuel M. E. Church, South, exclusive of all masonry work, which said masonry work the defendants were bound to provide to be done in a proper and suitable manner before the said plaintiff could execute his part of the said agreement; and that the said defendants failed to perform their part of said agreement, in that they did not erect suitable or proper masonry work, as in the said agreement they were bound to do, and by reason of said failure by said defendants to perform their part of said agreement, as aforesaid, the plaintiff in the erection and completion of the said church under said agreement suffered great loss and damage.” To this declaration the' defendants on October 26th, 1908, filed three pleas: first, never promised as alleged; second, performance; third, a counter claim and set off, and on March 15th, 1909, the following fourth and additional plea was filed: “That these defendants were at the time of the signing of the alleged agreement, to wit, on the 19th day of September, in the year 1901, acting for and as agents of the Trustees of Emmanuel M. E. Church, South, a corporation duly incorporated under the laws of Maryland.” ¹⁵³ On the 24th of March, 1909, the plaintiff interposed the following motion: “The plaintiff prays the Court to strike out the defendant’s fourth and additional plea upon the following grounds: first, that said plea is inconsistent with the defendants’ third plea, and second, that said plea is a plea in abatement and not proper to be allowed after pleading to the merits.” And on the same day, the plaintiff demurred to the defendants’ fourth and additional plea, and assigned as reasons therefor, that it was bad in substance and insufficient in law.

The record further shows, that “at the instance of the plaintiff’s attorneys the following docket entry is inserted in the record, to wit, “August 23‘rd, 1909.—Motion to strike out fourth plea, and demurrer overruled by the Court.” We have thus set out the pleadings in full, and it will be seen they are somewhat vague and indefinite, but it appears from the agreement of counsel filed on the 9th of February, 1910, that the case was heard in the Court below upon the plaintiff’s motion to strike out the defendants’ fourth plea, and upon the plaintiff’s demurrer to this plea, so that the case is before us on appeal from a judgment rendered in favor of the defendants to review the rulings of the Court below upon these pleadings alone. There was no demurrer to the defendants’ first, second and third pleas, and no replication traversing the matters therein. We are