Ewell v. Payne

Henderson, J., delivered the opinion of the Court. The executor of William J. Payne, who died December 27, 1949, holding three confessed judgment notes payable on demand executed in 1947 by the decedent’s son, Leslie J. Payne, entered judgment thereon in the principal sum of $4,800, plus a collection fee of $480, on February 21, 1950. On motion, the judgment was opened but the lien retained. The defendant filed general issue pleas and pleas of payment and set off.

There were various replications and rejoinders. The case was tried before the court and a jury which failed to agree. Upon retrial the jury rendered a verdict of $2,197.10 and judgment was entered for that amount from which the plaintiff appeals. The defendant entered a cross-appeal but later dismissed it.

One of the defendant’s contentions at the trial was that the decedent in his lifetime gave him the farm, known as the “Bonneville Farm”, on which the defendant has resided since 1941. There was no testimony as to the terms of that occupancy. One witness testified, over objection, that the decedent told him he had given the farm to Leslie because “he owed him some difference when they broke up steam-milling”. Title, however, remained in the decedent and by his will, executed in 1948, he devised it to Leslie.

The devise was confirmed by a codicil executed on February 12, 1949, subject to a charge of $5,000 to pay debts of the estate. On motion, the trial court struck out all testimony “which attempts to show a gift of the Bonneville Farm to Mr. Leslie J. Payne from his father, or to show that he in any way was the owner of that farm.” The trial court left to the jury the question whether they should allow the collection charge and interest on ⁷⁶ the notes from the date of the demand for payment. Since the appellant did not object to the charge or file any motion for directed verdict, we must accept the jury’s finding on those points. From the principal amount of the notes, $4,800, which the jury allowed, they deducted a credit of $188.50 for soil sold from the farm after the decedent’s death.

This item is not in dispute. The disputed credits are: (1) for a tract of land sold by the decedent from the farm in 1949 to William W. Gibbons for $1,275; (2) for timber sold by the decedent from the farm in 1949 to Clarence D. Fleming for $1,000; and (3) for a rebuilt Ford motor supplied to the decedent by Leslie J. Payne in 1949, valued at $139.40. Testimony was admitted over objection that the decedent told Marion W. Landing and Brinkman L. Payne that he was going to credit the amounts received from the sales of the tract of land and timber on the notes of Leslie J. Payne. He did not do so, and the mere statement of what he intended to do would seem to fall short of a promise.

Pomerantz v. Pomerantz, 179 Md. 436, 439 , 19 A. 2d 713 . If the statements could be construed as promises, it seems clear that they lacked consideration and were therefore unenforceable. Cf. Pomerantz v. Pomerantz,