E. J. Codd Co. v. Parker

Fowler, J., delivered the opinion of the Court. This is a suit by the E. J. Codd Company of Baltimore City on an open account against Walter W. Parker. The narr. contains the common counts and to it was annexed the affidavit required by the Practice Act of Baltimore City (New Charter, sec. 312). The defendant pleaded thé general issue pleas and after the demurrer to his third, which was a special plea, was sustained, he filed an additional plea to the effect that he acted as agent of the Modified and Sanitary Milk Company in purchasing the goods sued for and that the plaintiff had elected to sue that company for said goods and had recovered judgment against it therefor.

This plea was also demurred to, but the demurrer was overruled. Upon the general issue pleas, therefore, and upon this additional plea the case was tried. It appears that on the 26th March, 1902, a motion made by the plaintiff for judgment by default for want of sufficient affidavit to the pleas was overruled. There was a judgment in favor of the defendant and this is the plaintiff’s appeal.

At the trial below the plaintiff offered one prayer and the defendant two. The defendant’s second was the only prayer granted. To this ruling the plaintiff excepted. But inasmuch as the bill of exceptions was not signed within thirty days from the rendition of the verdict the questions thereby pre ³²⁴ sented cannot be considered on this appeal.

This result however is of no importance because the questions presented by the exception are before us on the demurrer to the additional plea. The two questions, therefore, which we are to consider are, first, was there error in overruling the plaintiff’s motion for judgment on the ground that the affidavit to his pleas was defective ; and, second, was there any reversible error committed in overruling the demurrer to the additional plea. i. If the first question can be said to be properly before us we think there can be no difficulty in its solution. In the first place what is the language of the affidavit attached to the pleas?

It is “that, every plea so pleaded by the defendant is true, and all of the plaintiff’s alleged claim is disputed, and that the affiant believes the defendant will be able at the trial to produce sufficient evidence to support the said pleas and that he is advised by counsel to file the said pleas.” Following this affidavit is a certificate by counsel that he so advised the defendant making the oath. The objection of the plaintiff to this affidavit is that although it alleges that the pleas are true; it fails to state not only what is due and owing, but it also omits to say that the defendant will be able at the trial to produce sufficient evidence to sustain the part disputed. It is difficult, however, to understand how the defendant could make and swear to such statements when he disputes the whole of the plaintiff’s claim. The case of Adler v. Crook, 68 Md. 495 , is conclusive upon this question, if any authority be needed.

In that case this Court was considering and construing the same provision which is now embodied in section 312 of the new charter of Baltimore City, namely, sec. 171 of the old charter as amended by the Act of 1886, ch. 184. It provides that although the defendant, may have pleaded, unless such plea contains a good defense, and unless the defendant, or some one in his behalf, shall under oath * * state that every plea so pleaded by the defendant is true, and shall further state the amount of the plaintiff ’s demand, if anything, admitted to be due or owing and the amount disputed,