Coburn v. Harris

■ Irving, J., delivered the opinion of the Court. This is an action of assumpsit brought by the appellee, against the appellant, in the Baltimore City Court, on the 4th of March, 1880. The declaration in a single count, claims for money payable to plaintiff for goods bargained and sold by the plaintiff to the defendant's intestate, in his life-time, and delivered since his death to George Coburn aforesaid, and John Coburn, administrators of said Thomas Coburn, the said John Coburn having since said delivery been relieved and discharged by the Orphans’ Court of Baltimore City, from his office of co-administrator. ' The following bill of particulars of the plaintiff’s claim was filed: Estate of Thomas Coburn, dec’d, (George Coburn, Adm’r,) Dr. To John Harris. To 415 perches of stone, furnished for construction of wall at Greenmount Cemetery, from the date of the death of Thomas Coburn in Sept., 1811, to Dec’r 11th, 1811, at $2.00 per perch, $880.00 Interest from Dec’r 11, 1811.

The case was defended on plea of non-assumpsit, and that suit was not brought within nine months after the rejection of the claim by administrator, under sec. 108, of Art. 93, of the Code of Public General Laws. It appears that. Thomas Coburn was in his life-time under a contract with Greenmount Cemetery Company to build. a certain wall; and that he contracted with the plaintiff to furnish him all the stone he needed for the construction of the wall, at two dollars per perch; and that Thomas Coburn having died without completing the wall, the administrators after his death proceeded to finish the work. This suit is to recover for the stone alleged to have been delivered the administrators, after the death of their intestate, for the completion of the wall. ¹⁰¹ A judgment has already been obtained in another suit against this appellant for the stone delivered the intestate in his life-time.

The bill of particulars in that suit included tire stone which is the subject -of this action, but under the pleadings in that case, recovery for the stone furnished the administrators after the death of the intestate, was denied; and this suit has been instituted for it. In the other suit the whole claim was resisted by plea of never promised as alleged, and other pleas not necessary to be referred to for the purposes of this case. The record of that case was offered in evidence in this case, and evidence tending to prove the indebtedness now sued for. ít also was in evidence that this claim with others, duly authenticated, and passed by the Orphans’ Court, was exhibited, on or about the 28th of March, 1878, to the appellant lor payment, by the attorney of the appellee, and was objected to, and was not paid; that the suit already mentioned was then instituted, and that claim or right, to recover the amount now claimed in that suit under its pleadings, was abandoned in Court, on the 12th day of June, 1879. In the former suit the pleas of nonassumpsit were interposed as early as September 3rd, 1878.

The pleadings were subsequently amended, and issue was joined on May 30th, 1879. Upon these facts the appellant framed prayers in the present case, invoking the protection of the 108th sec. of Art. 93, of the Code of Public General Laws, because the suit had not been bi-ought within nine months after the exhibition to, and rejection of the claim by him. The Court adopting the theory that sec. 108, of Art. 93, did apply, and barred the suit, if the jury should find the facts enumerated, granted the third and fourth prayers of the appellant, but refused the sixth prayer. This refusal is one of the grounds of error relied on by the appellant.

In addition to the facts set out in the fourth prayer, the sixth prayer also contained the following: “and that subsequently a ¹⁰² suit was brought therefor, by the plaintiff in the Baltimore City Court on the third day of September, 1818, against George Coburn and John Coburn, the joint administrators of said Thomas Coburn, and the said defendants in said suit pleaded, that they never were indebted as alleged; and that they never promised as alleged, and if the jury shall further find, that at the trial of said case, the plaintiff amended the pleadings, and struck out John Coburn as one of the defendants, and prosecuted the case against George Coburn alone; and that in said case the plaintiff abandoned the item now sued for in this case, then the plaintiff is not entitled to recover, and the verdict of the jury must be for the defendant, even although the jury may further find, that after the death of Thomas Coburn, the plaintiff delivered to John Coburn as one of the administrators of said Thomas Coburn, the stone mentioned in the bill of particulars in this case.” The manifest object of this prayer was to get the Court’s instruction as to the effect of the former suit; as a demand of payment on the part of the plaintiff for his claim; and of the defendant’s plea of non-assumpsit to the claim made in the declaration,