Cohen v. Karp

Patttison, J., delivered the opinion of the Court. This is an appeal from a judgment recovered by the appellees, Harry Karp and Rebecca Karp,, his wife, against the appellant, Max Cohen, surviving partner of Max Cohen and Philip Bernstein, co-partners,, trading as Bernstein, Cohen & Company. The appellees executed and delivered unto the payees a promissory note of which the following is a copy: “$500.00 Baltimore, Md., April 9, 1919. “Pour months after date we jointly and severally promise to pay to the order of Bernstein, Cohen & Co. five hundred and 00/100 dollars * * * at East Branch,, Bernstein, Cohen & Co., Bankers, for value received, with cost of collection or any attorney’s fees, if incurred, in case payment shall not he made at maturity. “X H. Karp, “X R. Karp.” The above note was, not paid at maturity and a suit was brought thereon by the appellant. The declaration contained -six common counts and one ■special count.

The defendants filed the pleas of never indebted, and never promised, as alleged, and the further plea of set-off, which contained not only the common counts, hut a special count, in which it was alleged that the plaintiff, on or about the loth day of May, 1919, paid to J. Oastelberg and Sons out of the funds deposited with the said plaintiff by the defendant, H. Karp,, the sum of eight hundred dollars, without his consent or authority, which sum is still owing by the plaintiff. ²¹⁰ After successive pleadings, issues were joined and the case proceeded to trial, which, resulted in a verdict for the defendants for $336, that sum being the excess of the set-off claim of the defendant, Harry Karp; over the claim of the plaintiff upon which the suit had been instituted. A motion for a new trial was thereafter filed and granted. The grounds of the motion, however, are not disclosed by the record. The case came up1 the second time for trial upon the. pleadings as stated, and the jury again rendered a verdict for the defendants, Harry and Eebecca Karp, for the sum of $350.65, the same being the excess at that" time of the claim of Harry Karp over that of the plaintiff.

A motion for .a new trial and one in arrest of judgment were made, but both motions were overruled, and a judgment was entered for both defendants upon the verdict rendered. In the trial of the case eighteen hills of exception were noted. Of these seventeen relate to evidence and one to prayers. In addition to the rulings on the evidence and the prayers, are the ruling*® oí the court on a demurrer to the rejoinder and upon the motion in arrest of judgment, which are to he reviewed by this Court.

Tiha sole defense in this case is that of set-off, which is unknown to the common law, and owes its origin altogether to statute. 1 Poe, Pl. & Pr., see. 613; Annan v. Houck, 4 Gill, 331 ; State v. Balto. & O. R. R. Co., 34 Md. 344 . In the different states statutes have been "passed iu relation to the defense of set-off, and consequently we must, look to the statutes of each state to- ascertain the character and extent of such defense therein. In this State the statutes (secs. 12 and 13, art. 75, as amended by the Act of 1914, chapter 293) provides that: “Sec. 12. In any suit ex contractu or upon any judgment, if the defendant shall have any demand or claim arising ex contractu, or upon judgment against the plaintiff, the defendant may plead such claim es ²¹¹ pecially, whether such claim of the defendant be far liquidated or unliquidated damages * * “Sec. 13.

In every case where a special plea is filed as authorized by the preceding section, judgment for the excess of the one claim over the other, as each is proved, with costs of suit, shall be given in favor of the plaintiff or the defendant, according as such excess is found in favor of the one or other of the parties,” etc. The defense of set-off, technically, means a cross^claim, and is confined to mutual debts between the plaintiff and dedefendant. The object of allowing it is, to prevent eireuity of action and to enable the parties to adjust in one suit claims which, at common law,