Horner v. Frazier

Irving, J., delivered the opinion' of the Court. The declaration in this case after setting out that certain land of the plaintiff was about to be sold at trustee's sale, alleges “that the defendant proposed to the plaintiff that the plaintiff should become the purchaser of the said land at the sale, and promised the plaintiff, that if he would confess judgment in favor of the defendant for the amount of a certain unfounded claim the defendant then had against the plaintiff upon a certain joint and several promissory note, dated the 16th of August, 1869, for the sum of $810, payable one day after date, to the. order of the defendant, which note had been theretofore made hy a certain Joseph Broumel and the plaintiff who joined therein for the accommodation only of said Broumel, and as his surety and against said note and any action of the defendant thereon, the plaintiff then and there had a just and perfect defence, that he, the said defendant, in consideration thereof would advance and supply to the plaintiff all the money required to meet the payments of purchase money under such trustee’s sale, upon the understanding that the moneys which should be so advanced should be returned to the defendant hy the plaintiff after the plaintiff had effected a sale of the land so to be bought, which subsequent sale the defendant represented to the plaintiff that he could easily make at a large advance upon the price at such trustee’s sale; and the plaintiff, induced by the persuasions of the defendant, and relying upon his promise ⁹ aforesaid, and believing that the expected profits from such resale would exceed the amount of the judgment so to be confessed, accepted the said proposal of the defendant, and consented and agreed to purchase said land at trustee’s sale upon the understanding aforesaid, and did in fact, become the purchaser at said trustee’s sale for the price of §10,872.40.” The declaration then avers the full compliance on the part of the plaintiff with his part of the contract, and avers a failure on the part of the defendant, to keep his engagement therein, whereby the plaintiff' claims to be greatly damaged. There is also a count for goods bargained and sold; for work and materials provided, and for money found to be due “ on accounts stated between them.” After having pleaded “never indebted,” and that he “ never promised ” as alleged, the defendant filed two additional pleas, varying only in form, by which it was alleged that the promise was not in writing. The demurrer to these pleas presents the first question for determination.

The Circuit Court sustained the demurrer, and, in so doing, we think, was clearly right. In Ecker vs. Bohn, 45 Md., 287 , and Ecker vs. McCallister, 45 Md., 302 , it was decided that it was not necessary to allege a promise to which the Statute of Frauds applied, to be in writing; the Court saying, “if it appear in the proof, at the trial, to be in writing, it is sufficient.” In holding the Statute to affect the proof only, the Court observed and followed the well-established rule of pleading, that “ where an act is valid at common law, but is regulated as to the mode of performance by statute, it is sufficient to use such certainty of allegation as was sufficient before the statute.” Stephen on Pleading, 295 and 330; Spencer vs. Pearce, 10 G. & J., 295 . The pleas were an argumentative answer to the declaration and asserted nothing which was not cognizable under the general issue already pleaded, and were, therefore, demurrable. Chitty on Pl., 552; Reade vs. Lamb, 6 Exch., 130; Leaf ¹⁰ vs. Teuton, 10 M. & W., 393; Hayselden vs. Staff, 5 Ad. & Ellis, 160.

Such defects formerly could ‘only be attacked by special demurrer, which is no longer allowed here, having been abolished by the Code, and now it is admissible to raise the question under general demurrer, as here allowed. Miller vs. Miller, 41 Md., 623 . The question might have been raised upon motion to strike out the plea, but the decision of Miller vs. Miller has been regarded as fully settling the question in Maryland, in favor of the right to raise the question under general demurrer. 1 Poe’s Pleading 'and Practice at Law, secs. 639 and 640, (2d Edition.) At the trial, Joseph Broumel, who was a joint maker with the plaintiff of the promissory, note for $810 to Alexander PI. Horner, (alleged in the declaration as an unfounded claim, the confession of judgment upon which to Horner is alleged as the consideration for Horner’s promise on which suit was brought,) was admitted as a witness to prove the unfounded character of that note.

The first exception raises the question whether this witness was competent, it appearing at the trial, that Alexander H. Horner, the payee of'the note, was then dead, and his executors were the parties defendant to the suit. Under the construction which has been given, the Evidence Acts of 1864 and 1868, by numerous‘‘decisions of this Court, we think no error was committed in admitting Broumel’s testimony. The object of those' Acts was to remove restrictions and not to impose them. Only such exceptions were made as seemed necessary to preserve mutuality, and to prevent undue advantage being given to a survivor in a contract where the other contractor was dead.

Downes, Ex’r vs. Md. & Del. R. R., 37 Md., 104 ; Johnson vs. Heald, 33 Md., 352 ; Swartz vs. Chickering, 58 Md., 295 . It is only where the suit is upon the cause of action, to which one party is dead, that the other party is excluded to preserve mutuality. Where such contract ¹¹ only incidentally arises, in another suit, on another contract, and about something else, as matter of evidence touching this suit, the death of one party to it does not close the mouth of the other ; but he is a competent witness.

Smith vs. Wood, 31 Md., 297 ; Wright vs. Gilbert, 51 Md., 157 ; Leiter, et al, vs. Grimes, 35 Md., 434 . A contrary view has been contended for on the authority of Standford vs. Horwitz, Admit, 49 Md., 529 , but we do not find anything in that case inconsistent with the ruling here made and supported by the authorities already cited. In Standford vs. Horwitz, the proceeding was upon the mortgage to secure certain notes. The witness who was excluded was a party to the mortgage debt, and stated, the signature to be his own.

It was desired to prove by him that he -was acting merely for his son, and that the note was tainted with usury. This was not permitted, and with manifest propriety, as the mutuality in such case would not be preserved. In the case before us, the suit is upon a contract to which the witness Broumel was no party, and the contract to which he rvas a party, only incidentally figures in the suit as matter of evidence. • The second bill of exceptions embraces the prayers which were granted and refused. The fourth prayer of the defendant, which was rejected, was treated not only as a prayer to take the case from the jury, but as interposing special exceptions to the plaintiff’s first prayer which was granted.

It states three propositions, 1st, that there is no evidence' in the cause legally sufficient to support the same; 2nd, that no consideration has been proven for the promise sued on, and 3rd, because none of said promises and agreements can be maintained under the Statute of Frauds. If the provisions of the Statute of Frauds do not prevent recovery, there was, undoubtedly, sufficient consideration for the defendant’s undertaking, and proof from which the jury could find for the plaintiff. The $1263.11, ¹² amount of principal and interest of the $870 note on which suit was pending, and the validity of which was denied as' an actual debt, for which the plaintiff confessed judgment, together with the $2000 actually advanced on the contract, certainly form a real and valuable consideration for the undertaking on the part of Horner, on which the judgment appealed from was obtained. Frazier treated as valid a note which he contested, and abandoned defence, and confessed judgment, which was afterwards made by execution.

The jury had evidence that Frazier did not in fact, owe that money to Horner, and, if he did not, there was certainly sufficient consideration for the contract sued on in this case; and authorities cannot be needed for so tra'nsparent a proposition. Whether the contract sued on was proved as laid in the declaration, was a question for the jury upon all the proof submitted. Whether it was an enforceable contract is the question presented by the appellants’ fourth prayer. The contention is that it was void, not being in writing as required by the Statute of Frauds.

It was not a contract for an interest in land, and was not obnoxious to the land clause of the fourth section of the Statute. The decision of Lamm vs. Port Deposit Association, 49 Md., 240 , would seem to be conclusive on that point. This we understood as conceded at the hearing; and the only ground relied on under the Statute is, that it was required to be in writing because it was a contract not wholly to be performed within a year from the making thereof. To bring a case within the year clause of the fourth section of the Statute, it must appear that it was expressly and specifically agreed that the contract was not to be performed within a year.

This was'the construction given to the statute in Fenton vs. Emblers, 3 Burrows, and that construction has been unqualifiedly adopted in this State. In Ellicott vs. Peterson’s Ex’rs, 4 Md., 488 , Judge Legrand says “the Statute will not apply ¹³ where the contract can, by any possibility, be fulfilled or completed in the space of a year, although the parties may have