East Baltimore Lumber Co. v. K'nessett Israel Aushe S'phard Congregation

Schmucker, J., delivered the opinion of the Court. The appellant sued the appellees on the common counts in assumpsit in the Baltimore City Court for the price of certain lumber furnished by it to one Sidney McCall and used by him in rebuilding a church edifice- on High street owned by the appellee congregation. It was sought to hold the appellees liable under a verbal promise, to pay for the Jumber upon the ground that it was an original undertaking which the Statute of Frauds did not require to be in writing. At the close of the plaintiff’s evidence the Court granted the defendants’ prayers taking the case from the jury because the evidence was not legally sufficient to charge the defendants as upon an original undertaking not collateral to the liability of McCall for the lumber.

The jury under the Court’s instruction rendered a verdict for the defendants and judgment was entered thereon from which this appeal was taken. At the Hearing in this Court the appellant abandoned its case as to the appellee Silberman. ¹²⁷ There is clearly no evidence in the case legally sufficient to affect the defendant congregation with liability for the plaintiff’s claim. The only evidence of any undertaking on its part is the proof that its president, Walderman, told the plaintiff’s manager that he and the church would see it paid for. The plaintiff did not rely upon the prima facie presumption that the president of a corporation has ordinarily power to bind it by a contract like the one under consideration and leave it to the defendant to overcome the presumption by proof.

The plaintiff put the president, Walderman, on the stand as its own witness and interrogated him on that subject and he testified not only that he had never made any contract on behalf of the congregation but that he had no authority to make any, and that the by-laws of the congregation strictly prohibited its officers from incurring pecuniary obligations for its account without its consent. He further testified that the congregation had appointed a committee for the purpose of contracting for the rebuilding of the church and that this committee had made a Written contract for the rebuilding with McCall which had been submitted to the congregation in meeting assembled and approved by it before execution, and that the same meeting had authorized him to sign the contract as pres-dent and that he had done so. The remaining issue in the case and the one to which the briefs and arguments of counsel were chiefly addressed is that of the legal sufficiency of the evidence offered to prove that the promise of the defendant Walderman touching the payment for the lumber was an original undertaking on his part and not collateral to the liability of McCall. In Meyer v. Grafflin, 31 Md. 350 , in construing the fourth section of the Statute of Frauds, it was held, upon a review of the earlier cases of Elder v. Warfield, 7 H. & J. 391 ; Conolly v. Kettlewell, 1 G. 260, and Cropper v. Pittman, 13 Md. 190 , to be the settled law of this State that the real point of inquiry in ascertaining whether the undertaking of the defendant, in a case like the present one, was collateral or original is to whom was the credit given at the time of the sale and delivery of the ¹²⁸ goods.

This is ordinarily a question of fact for the jury, although, when the Court can see that the evidence is not legally sufficient to tend to show that the credit was given to the defendant, the case should not be sent to the jury. The circumstances accompanying the whole' transaction may be looked to in ascertaining the understanding of the parties. In the present case McCall having made a conti act with the defendant congregation to rebuild its church set out to purchase the necessary lumber for the operation. He got prices from different lumber dealers including the plaintiff and being pleased with the plaintiff’s prices offered to buy from it, but it refused to sell to him because of his lack of financial responsibility.

He then took Coleman, the plaintiff’s manager, with him to see Walderman, the president of the congregation, about the matter and they both testified for the plaintiff as what transpired at that interview.. Coleman said in his testimony: “I told Mr.