Eisenberg, Admin. v. Air Cond., Inc.

Sybbrt, J., delivered the opinion of the Court. Bernard C. Soothcage filed a nonresident attachment on original process in the Baltimore City Court against the appellee, Air Conditioning, Inc., for salesman’s commissions and supervisory and servicing charges. His claims were partly based on a written contract entered into on October 15, 1956, with Air Conditioning whereby he was employed to sell its commercial and industrial type air conditioning units in Maryland, Virginia, Delaware, and the District of Columbia, for which he was to receive a salesman’s commission of ten per cent of the net sale price. In addition, Soothcage claimed commissions on certain sales not within his territory, and compensation for supervising installation of the units and servicing them when trouble developed within a one-year guaran ³³⁰ tee period.

The latter claims were based on alleged oral agreements, or in the alternative, quantum meruit. Several months prior to trial on the merits, a hearing on motion to quash Soothcage’s second amended short note in attachment was held before Judge Cullen. In its opinion and order, the trial court concluded that Soothcage’s charge for supervision and servicing (as distinguished from commissions) represented an unliquidated claim as it could find no sufficient proof of a meeting of the minds on the rate of compensation to be paid. The claim for commissions, on the other hand, was held to be for a liquidated amount.

The court found that since Soothcage had posted a bond for the amount of the claim held to be unliquidated, this met the requirement of Maryland Rule 1140 c 5 in regard to attachment on original process for an unliquidated claim. The motion was therefore overruled. By a subsequent order, appellant’s motion to place the case on the jury trial docket was denied by Chief Judge Emory H. Niles. The case was marked by voluminous pleadings, evidenced by six pages of docket entries in the Record Extract.

It finally came to trial without a jury on Soothcage’s third amended short note, after his death was suggested and his Administrator was substituted as plaintiff. A garnishee, Stone Construction Co., had confessed assets of $18,483.00. Soothcage’s third amended short note claimed a total amount due of $37,-265.97 (as compared with $17,293.00 claimed in the original short note). The trial court, Judge Harlan presiding, disallowed plaintiff’s claim for supervision and servicing and for commissions on jobs done outside appellant’s assigned territory, except in two instances where the court found there was sufficient proof of oral agreement between the parties that a commission would be paid.

Commissions on sales covered by the written contract were allowed with certain modifications agreed upon by the parties, according to evidence offered by Air Conditioning and accepted by the court. After allowing credits for sums already paid to Soothcage, and for telephone bills charged to him, the court entered judgment in favor of plaintiff-appellant for $3,863.80. ³³¹ Upon this appeal taken from the judgment by the administrator of Soothcage’s estate, five contentions are made: (1) that the claim for supervision and servicing was incorrectly held to be unliquidated; (2) that the denial of a trial by jury unjustly restricted appellant’s rights; (3) that the decision of the trial court was contrary to the facts and the law with reference to allowance for commission, for supervisory service and in permitting a set-off; (4) that the court erred in admitting compromise data; and (5) that the court erred in the admission of hearsay evidence. It appears that no useful purpose would be served in setting forth in detail the many points of dispute raised below or the many items of evidence introduced. But it is well to bear in mind Maryland Rule 886 a, which provides that when a case lias been tried below without a jury, “this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” See Hall v. Morris, 213 Md. 396 , 132 A. 2d 113 (1957).

The weight to be given evidence is under these circumstances a question for the trial court. Taylor v. Freeman, 186 Md. 474 , 47 A. 2d 500 (1946). (1) With respect to appellant’s first contention, careful examination of the record provides no support for finding clearly erroneous the trial court’s decision that Soothcage’s claim for supervision and servicing was an unliquidated one. After considering “* * * the myriad pleadings herein and the many points of law advanced in the arguments by both counsel, as well as the testimony taken on the issue of liquidity of the claim set out [by plaintiff] * * *” the trial court found that there was not sufficient proof of a meeting of the minds between the parties in regard to a rate to be paid for Sooth-cage’s services, but rather, that Soothcage appeared to be suing on a charge fixed unilaterally by himself.

This Court held in a leading case also involving a suit for services per ³³² formed, that where ja precise sum for damages is not agreed upon, and is not of the essence of the contract between the parties, the quantum of damages is unliquidated. Blick v. Mercantile Trust Co., 113 Md. 487 , 77 Atl. 844 (1910). In that case the Court concluded, as did the trial court in this case, that there was no agreement in which the defendant bound himself to pay any particular sum, but rather that the value placed on the services was what plaintiff himself assumed them to be worth. Cf.

Eastover Co. v. All Metal Fabr., 221 Md. 428 , 158 A. 2d 89 (1960), where the Court held the claim for services to be a liquidated claim, since the contract itself provided the basis of computation as to prices of material and hours of labor. See also 6 Corbin, Contracts, § 1290. The contract involved in the instant case mentions nothing in regard to compensation for supervision and servicing, and there was conflict in the testimony as to whether any such compensation was ever agreed upon. It was therefore a function of the trial court to evaluate the evidence, and its conclusion that the claim was unliquidated cannot, on this record, be said to be clearly in error.

In any event, appellant would not seem to have been prejudiced by that holding, since Maryland courts have jurisdiction in attachments on original process in ex contractu actions for unliquidated damages, Rule 1140 b 1, and appellant was permitted to amend his pleadings and file an attachment bond to cover the unliquidated portion of his claim. See Lanasa v. Beggs, 159 Md. 311 , 151 Atl. 21 (1930), and Gill v. Physicians’ and Surgeons’ Bldg., 153 Md. 394 , 138 Atl. 674 (1927). (2) Appellant claims the lower court erred in denying his motion for a jury trial, which was filed more than a year after institution of the suit. In seeking to avoid a much shorter time limit for electing a jury trial, said to be imposed by Rule 536 of the Supreme Bench of Baltimore City, appellant urges that the rule is not applicable to this action because of a provision in it stating that it “shall not apply ³³³ * * * to any proceeding under writs of attachment, or execution * * Appellee attempts to refute this contention by arguing that once the garnishee had confessed assets, there was no longer any attachment proceeding to try, but that the trial below was on the short note or declaration only, necessitating compliance with Rule 536 to obtain a jury trial.

He cites in support 2 Poe, Pleading and Practice, 5th Ed., §§ 533, 535. The rule is not in the record. This Court does not ordinarily take judicial notice of the rules of the lower courts, and the presumption is that the proceedings in the court below were in conformity with its own rules. Cherry v. Baker, 17 Md. 75 (1861).

See also Scott v. Scott, 17 Md. 78 (1861); Morrison v. Welty, 18 Md. 169 (1862); Tyler v. Murray, 57 Md. 418 (1882); Clay v. State, 211 Md. 577 , 128 A. 2d 634 (1957); and Pinkston, Tr. v. Higham, 224 Md. 513 , 168 A. 2d 712 (1961). We might add that it would appear from the portion of the rule quoted in appellant’s brief that Chief Judge Niles ruled correctly that the time limit for electing a jury trial, imposed by the rule, applied to the short note. (3) We find no reversible error in the rulings of the trial court as to the facts and law with reference to the allowance (a) for commissions, (b) for supervisory service, or (c) in permitting a set-off. (a) There are two major items in controversy as to the amount of commissions payable to Soothcage under the contract.

The chief dispute with regard thereto is whether or not the Die-craft installation and the three Penn Fruit installations, all in the Baltimore area, were or were not governed by the terms of the contract providing ordinarily for commissions of ten per cent. If governed by these provisions, Soothcage would have been entitled to a commission of $7,000 on the Diecraft installation, instead of the $3,500 allowed by the court, and to $7,425 on the Penn Fruit installations, instead ■of $696.20 allowed. ³³⁴ The appellant relies upon those terms of the contract which ordinarily provide for a commission of ten per cent on the net sale price of units. On the other hand, the appellee points to a clause in the contract providing that commissions would be at the rate of ten per cent “and as amended in the future”, and to another clause stating that Soothcage’s rights under the contract should “not include any commitments made by the manufacturer [Air Conditioning] on its own.” With respect to Diecraft, the testimony of appellee’s officers indicated that, as contemplated by the parties in inserting the clause dealing with amendments as to commissions, Sooth-cage agreed to a reduced commission because Air Conditioning had been forced to lower its price to Diecraft by $7,820 in order to get the job. As to Penn Fruit, they stated that this was a commitment, or “house account”, developed by Air Conditioning prior to Soothcage’s employment, that the allowance to him was not for commissions but for certain services in connection with these installations, and that Sooth-cage agreed to the amount of the allowance.

This testimony was corroborated by an undated letter written by Soothcage and received by Air Conditioning on August 1, 1958, listing as money due him the same amounts as those allowed by the court on these jobs, and by an accounting sheet which Sooth-cage had delivered to Air Conditioning on another occasion and which claimed