Kerr, Evans & Co. v. Co-Operative Improvement Co.

Stockbridge, J., delivered the opinion of the Court. The case presented for review by this appeal involves only questions of pleading. While the docket entries incorporated in the1 record show a trial before a jury, instructions asked by both plaintiff and defendant, and a verdict for the de fendant, there is nothing to show the nature of any of .the testimony given, or instructions asked. The action was instituted in March, 1915, in the form of a non-resident attachment.

The short note alleged the employment of the defendant company to offer for sale or exchange a 550 acre tract in Prince George’s County at a stipulated compensation of $1,000 in case of the consummation of the sale or1 exchange. With the short note was filed, as the vouchers, two letters signed by the defendant corporation by its president and secretary, and attested with the corporate seal. No formal acceptance appears on the part of the plaintiff, but on the second of the two letters is appended an acceptance by George N. Powell. . The defendant appeared to the short note and filed three pleas, the first two being the general issue pleas in assumpsit, and the third a plea of non est factum.

The plaintiff demurred to the first and second pleas., and the defendant filed as a fourth plea, the non-compliance of the plaintiff with the laws of Maryland to entitle it to do. business in this State. This plea was also demurred to, and the demurrers to the first, second and fourth pleas were sustained, the last ⁴⁷¹ properly so. Upon what theory the demurrer was sustained to the first and second pleas is not apparent, unless it was that the Court regarded the action as one in covenant to which the pleas of never promised and never indebted as alleged were not applicable. An examination of the short note, or narr., shows, that the action was, in reality one in assumpsit rather than covenant.

The well established law in this State is that a declaration in covenant should state that, the contract sued on is, under seal, though other words showing that the contract is under seal will suffice. Fisher on Essentials of Pleading, in Maryland, page 125. The declaration in this case nowhere alleges that the contract, sued on was under seal, or contains any language of like import. This ruling of the Court was, error, but not one, involving injury to the plaintiff of such a nature that the defendant can now be beard to complain of it.

The next step was the withdrawal of its plea, of non est factum, and the filing of two pleas upon, equitable grounds (both numbered five in the record), which were also demurred to, and the demurrer sustained. This rnling of the Court was clearly correct. They set up nothing by way of defense which would not have been admissible in evidence under the; general issne plea in an action of assumpsit. The defendant thereupon filed its sixth, seventh and eighth pleas: DeeendanEs Sixth and Seventh Pleas. “The defendant, The Co-operative Improvement Company, for defense and for further plea, says: That the plaintiff did not effect a sale or exchange of the property mentioned in the declaration according to agreement for the reason that said property in the City of Pittsburg which was to be exchanged for the real estate in Prince George’s County was unencumbered in excess of the sum of $82,000, in fact the sum of $88,000, and that said plaintiff was unable to procure the exchange of the same for the reason that at the time of the date fixed for the exchange of said ⁴⁷² properties,' prior thereto, and for several months subsequent to the date fixed for said transfer or exchange, and at the time of the letter of the defendant, on July 7th, 1914, said Pittsburg properties were by agreement in writing and of record in Alleghany County in the exclusive control and power of a certain Eugene S. Reilly & Company for sale, or exchange, and said plaintiff was not able to carry out the terms of the agreement as to the limit of encumbrances nor was it able to deliver said Pittsburg property as required by said agreement. “Aid for further defense the defendant says: That the plaintiff did not procure a purchaser ready and willing and able to complete a bona fide agreement made with said defendant and .the said sum of one thousand dollars is not due and owing by the defendant to the plaintiff.” Defe^-dawt's Eighth Peea. “That at the time of the