Hunting v. Emmart

Bowie, J., delivered the opinion of the Court. The question presented by this appeal is, the proper construction of the acceptance of a draft drawn by Messrs. Locke & Conway, in favor of the appellees, on the appellant, and accepted by him. ²⁷¹ At the trial below, the appellees (being the plaintiff's) produced and proved by competent evidence, the draft, and acceptance, and endorsement on the draft, of the tenor and effect following, viz., Baltimore, July 25th, 1877. E. B. Hunting, will please pay to Emmart & Quartley, twenty-five hundred and eighty-three dollars, to be taken from amount of purchase money of the house purchased by you, when they have entirely completed their contract, dated June 18th, 1877. $2583.00.

Locke & Conway. Across the face of the foregoing draft is the following, to wit: “'Accepted: payable when due under the contract, out of the purchase money. “Baltimore, July 26th, 1877. E. B. Hunting.” Subsequently there was endorsed on the back of the foregoing draft the following, viz., “ The contract of Emmart & Quartley, dated June 18th, 1877, for painting, glass and glazing of nine houses on North Boundary avenue, is completed to our entire satisfaction, according to their specifications. “Baltimore, February 16th, 1878. Locke & Conway.” The execution of which was also proved.

The appellees further proved by competent evidence, the original contract, between the drawers and payees of the draft, dated the 18th June, 1877, for painting and glazing nine marble front houses on Boundary avenue, and the completion of the work as therein stipulated, and that before the contract was entered into/ the drawers of the draft had offered to secure the drawees, by a draft on the appellant; who, was waited on by the foreman of the appellees, to know whether he would accept it, and did ²⁷² accept it in the form aforesaid, and delivered it to the foreman, who delivered it to the appellees. That during the prosecution of the work, the appellant, being requested to make some advances on his acceptance, refused, but said he would pay when the work was done, that he urged the appellees to complete the work, the sooner it was done, the sooner they would get their money; that after the work was completed and certified by Locke & Conway, as aforesaid on the draft, the appellant promised to pay the draft after a short time, etc., and finally he refused, saying he had a contract with Locke & Conway, and he owed nothing under the contract. On cross-examination, the witness admitted having given the following receipt: Baltimore, July 26, 1877. Received of E. B. Hunting his acceptance of Locke & Conway’s order of $2583, payable when due under the contract, out of the purchase money of $4500.

Emmart & Qtjartlet, jper Anderson. Witness said, that when the defendant drew this receipt, and handed it to him for his signature, he told defendant, it was unusual and unnecessary to give a receipt for the acceptance of a draft; defendant replied it was necessary .to show that he had made himself responsible for the amount of the draft; witness then signed the receipt, and the defendant handed him the draft with the acceptance thereon. Being further cross-examined as to his statement in chief, that he had never heard from defendant of any contract, hut that of the plaintiffs with Locke & Conway, until defendant, after the work was finished, finally refused to pay the draft, as he had testified in chief, and being asked in that connection what he understood by the words of his own receipt, “ when ²⁷³ due under the contract, out of the purchase money of $4500,” he said, that as he understood it when he signed it, there was so much money due by defendant to Locke & Conway, out of which defendant was to pay the amount of the draft to plaintiffs under their contract with Locke & Conway; no other contract than that between Locke & Conway and plaintiffs, was alluded to by the defendant at ■that time, or known to witness, etc. The appellant, then offered in evidence certain papers, following: 1st. A mortgage dated the 19th of February, 1877, from Michael Roche to E. B. Hunting, reciting a lease from Hunting and wife to Roche of certain lots of ground, and that Roche covenanted to build certain houses thereon, and Hunting agreed to advance Roche $12,000 in ■money and building materials; to constitute a lien on the houses, in satisfaction of part of which on the compliance with the covenants of the mortgagor in all respects, so as to exempt from liability under the mechanics’ lien laws of Maryland, the mortgagee, Hunting, •agreed to purchase one of the houses, at the price of $7500, $3000 whereof to he credited on the mortgage, «md pay the balance of $4500 in cash.

The appellant in his brief says: “It further appears, that the said Roche assigned Ms contract of leasing to Locke & Conway, and that they proceeded to build the houses in question.” The defendant’s counsel stated, that he offered these papers, on the part of the defendant, “as the contract referred to in his acceptance aforesaid,” and proposed to follow it with proof, that nothing had at any time become •due and payable to Locke & Conway thereunder; but the plaintiffs objected, and urged that the defendant should not be allowed to read the papers to the jnry, and to follow it up with the evidence proposed, which objection the Court sustained; to which ruling the defendant excepted, which constitutes his first bill of exceptions. " ²⁷⁴ The testimony having been closed, the plaintiffs submitted one prayer, which was granted, and the defendant two, which were refused, to which ruling of