Dipaula v. Green

Thomas, J., delivered the opinion of the Court. This is an action of assumpsit brought by the appellee against the appellant on an open account, and the case was tried in the Court below on issue joined on the general issue plea. .The judgment was in favor of the defendant, and the only exception in the record is to the ruling of the lower Court on the prayers. In the view we take of the case it will only be necessary to refer to the evidence produced by the plaintiff. If appears that the appellant entered into a contract with Arthur L. Blatchley, a contractor, for the erection of a store and dwelling on Uorth avenue near Charles street, in Baltimore City.

Blatchley purchased from the appellee cement, lime, etc., to the amount of $263.15, to be used in the erection of said building. The first item of the account is of March 4, 1910, and the last item is of April 28th, of the same year. There are two credits on the account, one-of $22.50, dated April 10, 1910, and the other of $50.00, dated April 14th, of the same year, leaving a balance due of $191.25. The items of the account, according to the testimony of the appellee, were sold and delivered to Blatchley on his credit, and were charged against him on the books of the appellee.

James J. McGrath, an attorney, in whose hands the account was placed for collection, testified on the 20th of May, 1910, he telephoned the appellant in regard to the claim and told him that he intended to file a lien against the property if the bill ⁴⁹³ was not paid, and that the appellant asked him not to file any lien, and promised that he would pay the claim within thirty days, and that he (witness) said that that would be satisfactory. Relying upon this testimony, which was corroborated in part by another witness of the appellee, but which was denied by the appellant, the appellee at the conclusion of the case offered the following prayer, which was granted by the Court below: “Plaintiff prays the Court to instruct the Court, sitting as a jury, that it finds from the evideuce that the defendant employed one Blatehley to erect a certain house for him in Baltimore City; and shall further find that the plaintiff, at the request of said Blatehley, furnished certain building materials for the same, and before said building was completed, and within sixty days after the furnishing of the last of said materials the plaintiff demanded payment of said bill from the defendant; and if it shall further find that the defendant-wag the owner, or one of the owners, of said building, and that the plaintiff threatened to file a lien for the collection of the amount of said bill against the building, or to take other legal proceedings against it for the collection of said bill, and that the defendant requested him not to do so, and promised that he would pay the amount of the plaintiff’s claim if the plaintiff would not file said lien or take legal action, if it shall so find; and if it shall further find that the defendant requested the plaintiff to send an itemized statement of account of said materials to him in the name of said Blatehley, and that the plaintiff did so send the account requested, and offered in evidence and the same was accepted by the defendant and that he again promised to pay the said account, or that he stated to the plaintiff’s attorney, Hr. HcGrath, that he did not intend to move into the building until every dollar on it tvas paid, and that he would pay the bill of the said plaintiff; and that the plaintiff, relying on said promise to pay, agreed not to file a lien against said building or to take legal proceedings against same for the ⁴⁹⁴ collection of said account, and in pursuance of Iris agreement did not file any lien or take legal action against said building, if it shall so find; and if the Court sitting as a jury shall further find that the purpose of the defendant in promising to pay the said account was not to answer for a debt of _ Blatchley, but to subserve some purpose of his own, and that the account has not been paid, then under the pleadings in this case the plaintiff is entitled to recover.” Every contract in order to be a binding obligation must be supported by a consideration, and unless the promise of the appellant set out in the prayer is based upon a sufficient consideration the prayer was bad. Now the consideration stated in the prayer was the agreement and. promise of the attorney in whose hands the claim was placed by the appellee not to file a lien against the property, and unless that promise to forbear to file a lien was a sufficient consideration to support the promise of the appellant, then the conclusion of the prayer allowing a verdict for the plaintiff was erroneous.

Section 1 of Article 63 of the Code of 1904 is as follows: “Every building erected and every building repaired, rebuilt or improved to the extent of one-fourth its value in Baltimore City and in any of the counties shall be subject to a lien for the payment of all debts contracted for work done for or about the same; and in the counties, except Baltimore county, every