Cassard v. McGlannan

Roberts, J., delivered the opinion of the Court. The appeal in this case is from a judgment of the Superior Court of Baltimore City. The preliminary facts are sufficiently stated in the preamble to the contract, between the appellant and the appellees, dated May 23rd, 1894, and are as follows: “ Whereas, Henry Stonebraker, deceased, did, by his last will and testa ¹⁷⁰ ment, dated the 17th day of February, 1877, give and bequeath to his two sons, John R. Stonebraker and Charles H. Stonebraker, all his recipes and trade-marks, with the sole right to use them in the manufacture and preparation of ‘ Stonebraker’s Medicines ’; and whereas, afterwards, the said Charles H. Stonebraker, by deed dated the 7th day of April, 1881, assigned all his right, title and interest in and to the said property, to the said John R. Stonebraker, and the said John R. Stonebraker upon the first day of July, 1885, assigned all his right, title and interest in and to said property to James J. Lamkin and Gerard Butke, and the said Gerard Butke afterwards assigned all his right, title and interest in and to said property to Howard Cassard, and the said James J. Lamkin, upon the 31st day of March, 1892, assigned to the said Howard Cassard, all his right, title and interest in and to the said property, whereby the said Howard Cassard became the sole owner of said property.” A subsequent clause of said contract reads: “ And the said Alexis W. McGlannan and Frank M. Hall, trading as aforesaid, do hereby covenant, for themselves and their heirs, to pay Angelica E. Stonebraker the sum of five hundred dollars annually, in monthly payments, according- to the provision in the will of Henry Stonebraker, requiring the said sum of five hundred dollars to be paid annually to the said Angelica E. Stonebraker, his wife, out of the profits derived from said ‘ Stonebraker’s Medicines,’ and also the sum of three hundred dollars ($300) to each of the four daughters of said Henry Stonebraker, or their assigns, after the death of the said Angelica E. Stonebraker.” At the time of the execution of said contract, and of the delivery of the property referred to therein, the appellant signed and delivered to the appellees, the following paper: “I, Howard Cassard, trading- under the name and style of ‘ The Stonebraker Chemical Company of Baltimore City,’ in the State of Maryland, in consideration of the. sum of ten thousand dollars ($10,000), paid me by Alexis W. McGlannan arid Frank ¹⁷¹ M. Hall, do hereby bargain and sell to the said McGlannan and Hall, all the labels, stocks, fixtures, laboratory ware, good will, and the right to manufacture all of Stonebraker’s medicines, now located at No. 517 West Baltimore Street in said City and State, and now occupied by the Stonebraker Chemical Company,” which was duly executed and acknowledged before a justice of the peace. As stated the consideration of this sale and purchase is the sum of ten thousand dollars.

It is conceded that but $8,800 of this consideration has been paid the appellant and this action has been brought to recover the balance, which is the sum of $1,200. It will be seen from what we have already said that the contract specifies a consideration of $10,000 in cash, and it nowhere appears from this record that there was any other or different consideration mentioned or referred to in the contract. This controversy is entirely relieved from any question of want or failure of consideration or breach of warranty, or defect in quality or misrepresentation as to value. The fact that by the second clause of the contract the goods were to be sold to the appellees “ for the sum of ten thousand dollars upon the terms and conditions hereinafter set forth,” presents no difficulty, as the fourth clause of the contract, in express terms, provides that “ the appellees shall pay to the said Angelica E. Stonebraker, widow of Henry Stonebraker, deceased, the sum of five hundred dollars annually, according to the terms of the will of her late husband, Plenry Stonebraker, and also the sum of three hundred dollars to each of the four daughters of the said testator, or their assigns.” No contract, such as the one we are now considering, could have reasonably been consummated, without provision being made for the discharge of the liens just mentioned created by the will of said testator.

It is quite clear from the terms of the contract that the appellees were to pay to the said Angelica E. Stonebraker the amount provided for her by the said testator in his will, and it is none the less clear that the appellees were to make provision for the amounts respectively due to each of the four daughters of said tes ¹⁷² tator, and as each of the daughters was entitled to the sum of three hundred dollars, the amount due to the said daughters was the gross sum of $1,200, which the appellees have not paid and is So much of