Greenfield v. J. W. Frye, Inc.

Marbury, J., delivered the opinion of the Court. This case was first heard in the People’s Court of Montgomery County where the appellee, J. W. Frye, Inc., brought ⁴⁰⁰ an action in debt against the appellant, Marvin Greenfield, for the unpaid balance owed it for building a swimming pool. The appellant answered and filed a counterclaim in the amount of $1,000, alleging that certain specifications had not been met in the construction of the pool in accordance with the contract between the parties. Following a decision in favor of the appellee awarding a judgment in its favor the appellant filed a notice of appeal to the Circuit Court for Montgomery County where the case was sent for a trial de novo.

Before the appeal was heard the concrete apron around the pool cracked and was heaved up as a result of freezing and thawing that occurred during the winter. The appellant duly filed a new suit in the Circuit Court for this damage to the concrete, and simultaneously filed an amended counterclaim in the case appealed from the People’s Court, alleging new and additional claims that arose after the decision in that court had been rendered. Subsequently the appellant moved to consolidate the original action filed in the Circuit Court with the case appealed from the People’s Court. In response to a motion ne recipiatur Judge Moorman dismissed the new suit in the Circuit Court but granted leave to amend the counterclaim in the case appealed from the People’s Court.

The propriety of these actions is not before us as no appeal was taken therefrom. On October 10, 1963, the amended counterclaim containing three counts was filed, the first count being the same counterclaim heard in the People’s Court, and the second and third counts constituting new and additional claims being presented for the first time in the Circuit Court. The case was tried in the Circuit Court before a jury which rendered a