Gable v. Scarlett

Irving, J., delivered the opinion of the Court. The question for decision in this case arises on a demurrer to the %arr. of the plaintiff, who is the appellee in this Court. The Court below overruled the demurrer, and gave judgment for the appellee’s claim, against the appel ¹⁷² lants. Erom that judgment this appeal was taken.

This judgment was rendered for the plaintiff, upon the overruling of the demurrer, in pursuance of an agreement of parties' providing therefor, if the Court should hold the narr. good, reserving the right of the appeal. The declaration sets out that Gable & Beacham, on the 19th of May, 1877, entered into an agreement with Joseph M. Cone, of Baltimore City, in manner and form as is contained in the agreement, which is referred to as filed as part of the declaration. The agreement, in substance, provides for the purchase from Gable & Beacham by Joseph M. Cone, of five thousand five hundred dollars worth of building lumber and mill work, which is particularly described and set forth in the agreement. In part payment therefor, Gable & Beacham agreed to take “ the fourth house, on Harlem avenue, in said city, West of Mount street, to he built by Joseph M. Cone on a lot fifteen feet eight inches wide and ninety feet deep, (subject to a ground rent of one hundred dollars,) at twenty-six hundred and seventy-five dollars.” It also fully describes the character and quality of the house.

The last clause of the agreement is in the following words: “Disagreed by said Cone that before said house shall have been conveyed to said Gable & Beacham, he, the said Cone, shall create thereon a mortgage of fifteen hundred dollars, at two years with interest, six per cent.; the use of which said mortgage and the money realized therefrom shall enure to the said Gable & Beacham ; the said Gable & Beacham are then to receive a conveyance of said house subject to said mortgage, which they are to covenant to pay at maturity.” This agreement was signed by Cone and by Gable & Beacham, hut was not under seal. The narr. sets out that the mortgage mentioned was executed, acknowledged and recorded, and that the house was then assigned to James W. Beacham for Gable & ¹⁷³ Beacham, subject to the mortgage executed by one Henry Bruns to Joseph M. Cone, and that in said deed of assignment of the house to James W. Beacham, which was executed by said. Henry Bruns and James W. Beacham, it is recited that James W. Beacham, on behalf of Gable & Beacham, will pay the mortgage when it is due and payable. The narr. next avers, that the plaintiff is the holder of the mortgage, by assignment from Joseph M. Cone, for value, and in fact, that the mortgage and the mortgage debt have been assigned the plaintiff, for value, and the consideration has been received by the defendants (appellants) as stipulated in the agreement.

The narr. then alleges, that when the mortgage debt matured, it was not paid, and that Gable & Beacham were duly notified; and it became necessary to sell the property, and it was accordingly sold by decree of the Circuit Court of Baltimore City as a Court of equity; and that the proceeds of sale were duly distributed by auditor’s report, which was regularly and finally ratified; that during all this time the plaintiff was the holder of the mortgage, and the mortgage debt secured thereby, and that, after applying the proceeds of sale to that debt, a balance of four hundred and twenty-one dollars and four cents remained unpaid to the plaintiff, “ and that for this sum the defendants remained and are liable to pay the same to him, under their agreement as aforesaid, and under the facts herein alleged.” The Superior Court, in overruling the demurrer and giving judgment for the appellee, could only have proceeded upon one of two theories, viz., that the suit was on the covenant of James W. Beacham to pay the mortgage debt, which, is in the deed of the property to him for the firm, and that the firm was bound thereby, and the covenant enured to the benefit of the assignee of the mortgage ; or that the suit was upon the agreement between Cone and Gable & Beacham, which agreement passed to ¹⁷⁴ the assignee of the mortgage by' that assignment. The appellants insist, that the