Clemmer v. Merriken

Thomas, J., delivered the opinion of the Court. This suit was brought in the Superior Court of Baltimore City on the common counts in assumpsit and a special count, which charged “that on or about the 11th day of August, 1921, the defendant retained the services of the plaintiff, and in return for such services promised in writing to> deliver” to the plaintiff “100 shares of the common stock of the Adamantex Brick Company of the par value of $10.00' per share”; that the said services had been fully rendered “as agreed,” but that the defendant had failed and refused “to deliver the said stock.” The suit was brought under affidavit, and there was annexed to the declaration the following account and contract: “George B. Olemmer, Lexington Building, c/o Adamantex Brick Company, Baltimore, Md., to Calvert C. Merriken, Dr. As per contract of August 11th, 1921, services rendered........................$1,000.00 Calvert C. Merriken, Attorney at Law, Denton, Md. August 11, 1921. The undersigned, the secretary of the Adamantex Brick Company of Baltimore, Md., hereby retains the services of Calvert C. Merriken, Esq., of Denton, Md., and hereby agrees to pay the sum of $1,000.00 for the same in the following manner, viz.: By immediate delivery of 100 shares of the common stock of the Adamantex Brick Company, par value $10.00. Said signed application for same being dated August 11, 1921, stock to be delivered at once.

Geo. B. Olemmer.” ⁶⁷⁷ The defendant pleaded that he never was indebted, and that he did not- promise as alleged, and the trial of the case on the issue joined on those pleas resulted in a verdict and judgment in favor of the plaintiff for $1,000, from which the defendant has brought this appeal. The plaintiff offered in evidence the contract referred to, and also offered evidence tending to show that he was an attorney-at-law, and engaged at Denton, Caroline County, Maryland, in the business of selling real estate and “handling mortgage loans”; that the defendant came to his office on the 11th of August, 1921, to sell him some stock in the Adamantes Brick Company, and that he entered into1 the contract mentioned “for the purchase of $1,000.00 worth of the stock”; that lie had been engaged for seven years “in buying and selling mortgages,” was “in touch” with “the finances -x- -x- x j-jj COunty,” and kept “a tabulated list of the buyers and sellers” and “of all stock transactions,” and that the “services” referred to in said contract were to consist in his giving the defendant the “result of that compilation,” which “included the latest copy of that list showing those purchasers”; that he gave the defendant “'a portion of” the names and addresses of the parties the first day he came to see him, and later gave him an “additional number of names,” &c.; that the defendant and Mr. Eaton, who was working for the defendant, came to see him four times during the period of two or three weeks for information in regard to the parties whose names he had given them; that the defendant required him to sign an application for the stock, dated August 11th, 192 L, because he said “that Was necessary in order to get the stock properly issued”; that no demand was ever made on him to pay for the stock because it “was considered a paid-up application”; that he had demanded delivery of the stock, but it had never been delivered to him, and that the defendant had refused to do so. The defendant testified that he was secretary of the Adam-antes: Brick Company, which was incorporated in July, 1921, ⁶⁷⁸ and .that he went to the Eastern Shore for the purpose of selling the stock of that company; that after trying to do so for several days he determined to try to get somebody there to sell it and went to see the plaintiff for that purpose; that he thought the plaintiff through Ms influence could assist him in selling the stock, and that plaintiff told Mm that he thought he could sell the stock to “the amount of $10,000 at least,” and that he, witness, fixed the rate of his commission at ten per cent.; that the plaintiff said, “If you will sign, an agreement to the effect that yon will give me $1,000 worth of the stock I will give yon my list of names and give you all the names that I 'have of people in this section, and, to make it stronger, I would suggest that I sign an application for $1,000 of stock, and you can show the people up there that I have become a stockholder in the concern”; ’that he went to see two people whose names had been given him by tbe plaintiff, and that later Mr. Eaton, the vice-president of the company, spent ten days interviewing the people whose names had been furnished by the plaintiff, but that uo stock of the company was sold.on the Eastern Shore; that the word “services” in the contract meant that the plaintiff “was going to give every assistance and even talle to people himself in behalf of the sale of stock, and that if any sales were made as a result of that, he would have certainly paid the plaintiff a commission of ten per cent.; that .the stock was not delivered because the witness “did not think that the plaintiff earned it in any sense of the word.

Plaintiff did not sell .any stock of the company and really did not give any assistance in selling any stock of the company as was agreed upon verbally by us.” The only exception in the ease is to the granting of the