Dryden v. Barnes

Jones, J., delivered the opinion of the Court. This appeal is brought up upon the exceptions, set out in the record, taken to rulings in the trial below upon questions of admissibility of evidence, and to the instructions to the jury. These exceptions will be examined in the order in which they occur. The appellee here was the plaintiff below and recovered against the appellant, the defendant below, the judgment from which the appeal was taken.

The nar. in the case consists of a single count; and alleges that on or about the 7th of August, 1899, the appellant, as agent for a certain Frederick Baldt and wife, “entered into a contract to sell and did sell” to the appellee “certain personal property then belonging” to said Baldt and wife and being on a certain named farm in Somerset County, this State; “and that among and forming a part of said personal property there were certain articles,” &c., “of the nature or kind and of the value set forth in a bill of particulars filed” with the narr. that afterwards the appellee discovered that said articles, &c., set forth in the bill of particulars “had been removed from said farm, and in any event, were never delivered to said plaintiff” (appellee) who made demand upon the appellant “as agent aforesaid for the delivery of the same or the payment therefor, whereupon, on the 13th day of September, 1899, said defendant (appellant) in his individual and personal capacity, agreed in writing, to see that said plaintiff (appellee) should be paid for every article so sold to him as aforesaid according to said contract, but the said defendant (appellant) has refused ³⁵⁰ and neglected and still refuses and neglects to pay the plaintiff (appellee) therefor or for any part of the same,” &c. The appellant pleaded non-assumpsit, limitations and payment. The case was tried upon issues made up on these pleas. The first exception of the appellant was to the admissibility in evidence of a writing signed by him and reading as follows: “I hereby agree to see that Mr. Samuel S. Barnes (appellee here) is paid for every article belonging to Frederick Baldt or his wife on the Westover farm according to contract.” As introductory to the offer of this paper the plaintiff produced in evidence the contract of sale referred to in the narr. as having been executed to the plaintiff by the defendant as agent for Frederick Baldt and wife, which was dated on the 7th of August, 1899, and is an agreement to sell to the plaintiff the farm “Westover” mentioned in the narr. and also “all and singular the personal property contained in or on said farm and belonging to said Frederick Baldt, his wife, or either of them, excepting therefrom” certain horses and other named personal property, “at and for the sum of seventeen thousand dollars ($17,000)” payable $500 “on or before September 1st, 1899,” according to a promissory note given by the plaintiff to the defendant for the sum of $500 and the further sum of thirteen thousand and five hundred dollars on or before the same date; and the remainder of the purchase money, $3,000, to be paid “out of and from the sale of the personal property,” sold to the plaintiff under said contract, “within four months from” the date thereof and to be secured as the contract provided.

Possession of the personal property was to be given to the plaintiff immediately upon his complying with the terms of sale and possession of the farm “not later than said 1st day of September, 1899.” A “good and sufficient deed and conveyance” was to be at once executed by Baldt and wife to the plaintiff and placed as an escrow with a named bank to b’e delivered to the plaintiff as soon as he complied with the terms of sale. The receipt by the defendant of the promissory note of $500 payable on September 1st, 1899, as provided in the contract, was acknowledged. ³⁵¹ The plaintiff then testified on his behalf that he had personal knowledge of all the articles that were on the farm; that after he contemplated purchasing the same he visited the farm and found some of the articles being removed by the then occupant; that he had a conversation with Frederick Baldt, Sr., as to what the latter wanted to sell; that Frederick Baldt, Jr., the then occupant of the farm brought him, plaintiff, a list purporting to be a list of personal property then on the farm; that this was before he (plaintiff) had any idea of buying the farm or before he had any negotiations for a purchase; that after the contract of purchase was entered into with the defendant, but before accepting the contract and taking possession of the farm he notified the defendant that some of the personal property on the farm had been removed, and received from the defendant a letter enclosing one from Mr Baldt, Sr., both of which are set out in the record, and in the latter of which it is stated that certain articles therein named Were removed from the farm by mistake and that the same would be returned. None of these articles are among those contained in plaintiff’s bill of particulars. The plaintiff then further testified that after this he met the defendant on the cars on the 13th of September, 1899, “and told him that some things were being removed from the farm and that he (plaintiff) was going to throw up the farm;” and thereupon the defendant executed and gave him the paper writing which has been set out, and to the admission of which by the Court the defendant’s first exception was taken.

It is argued in support of this exception that the writing in question evidences a collateral undertaking and that being prior to the passage of the Act of 1900, ch. 362—Code 1904, Art. 35, sec. 38—it is void under the Statute of Frauds because no consideration is expressed therein. In Elder v. Warfield, 7 Har. & J. 391 -8.it is said, in ascertaining whether an undertaking is collateral or not, “the extent of the undertaking, the expressions used, the situation of the parties, and all the circumstances of the case should be taken into consideration.” Applying these considerations here makes the ³⁵² undertaking of the defendant in question appear as a direct and original and not as a collateral one. It did not have reference to making good the liability of Baldt under the contract the defendant had made for him; but appears rather as intended to serve the purpose of the defendant himself. When, the plaintiff called the attention of the defendant to the fact, that articles were being removed from the farm in August the latter referred the matter to Baldt, Sr., the principal in the-contract of sale of the yth of August, 1899, but when in September he saw the defendant and then informed him of the-removal of articles from the farm that he claimed were included in his contract with the defendant as agent of Baldt; and indicated that he would “throw up the farm” the defendant gave him the agreement in writing here in question.

This was before plaintiff had accepted the contract of purchase of ■the farm and personal property by taking possession under it. and if the other party thereto failed or refused to carry out the contract, as made, the plaintiff had the right to rescind, and put an end to it. Balto. City v. Schaub Bros., 96 Md. 534. As Baldt, Sr., lived at the time in Pennsylvania the-plaintiff may, on this account, have preferred to rescind the contract rather than undertake to enforce it, It is inferablethat the defendant gave the plaintiff the agreement in writing here in question as an inducement for him to relinquish the right to rescind and to consummate the contract.

The defendant had an interest in having the contract consummated because he had a claim to commissions on the sale made thereby. It is no answer to this to say that the defendant’s commissions were already earned, for be this as it may, a rescission of the contract under the circumstances would have raised complications as to these; and thus there was supplied to the defendant a motive and reason; and derived to him an advantage in preventing such rescission. In Andre v. Bodman, 13 Md. 241 , it was laid down that if a mechanic who^ had done work for a contractor should be restrained from filing a claim for a lien by a promise of the owner to pay him' by which his lien against the property on which the work; ³⁵³ was done was lost, the owner would be liable on such promise though not in writing. Upon the question whether the agreement or writing which is the subject of the exception we are considering was a collateral or an original undertaking the principle thus enunciated in Andre v. Bodman, supra, is applicable.

The agreement expressed in the writing here in question being an original and not a collateral undertaking the consideration therefor did not need to be set forth in the writing but could be shown aliunde, (i Parsons on Cont., 431, 9 ed.) and is made to appear in the circumstances already mentioned. In this regard an analogous case to the one at bar is that of Keefer v. Mattingly, 1 Gill, 182 . There was a different state of pleading in that case—the declaration there being upon an indebtedness for sundry articles, &c., properly chargeable in. account and the money counts; and the Court said that if the paper writing which was the foundation of the plaintiff’s claim and which did not, in itself, set forth a consideration, had been declared on “it would have been necessary to have had proper averments of a consideration.” But as the case was presented the Court held that the paper could be connected with facts and circumstances appearing in the proof which were proper to be submitted to the jury as affording inferences as to the consideration. In the case at bar the plaintiff declared upon the paper writing, or agreement evidenced thereby, which is under consideration.

If it be that the plaintiff has omitted from the nar. “proper averments of a consideration” no question as to that arises on this record. This-would have been a ground of demurrer to the declaration. 4 Encyc. Plead. & Prac., 929. And no demurrer having been interposed all question as to the sufficiency of the nar. in the-regard mentioned must be considered as waived.

Code, 1904, Art. 75, sec. 9; 1 Poe’s Plead. & Prac., sec. 756A; Davis v. Carroll, 71 Md. 569 ; Huntington v. Emery, 74 Md. 70 , and no question is here determined as to .that. So much has been said because of some allusion in one of the briefs to' the pleading in connection with the question of admissibility ³⁵⁴ of evidence raised by this first exception. The defendant here took direct issue with the averments of the nar. that he had “agreed in writing,” &c. The writing, as we have seen, \vas in itself proper evidence of the agreement without expressing a consideration and was supported by a consideration shown aliunde, The ruling in the first exception must be affirmed.

In the ruling in the second exception there was error. The object of this offer of evidence could only, properly, have been to show facts tending to prove that personal property that was on the farm “Westover” on the 7th of August, 1899, and covered