Leonard v. Union Trust Co.

Thomas, J., delivered the opinion of the Court. On the 31st. of December, 1917, the appellant and his wife executed and delivered to the appellee the following promissory note: “$2,o00.00. Baltimore, December 31, 1917. “On demand after date we jointly and severally promise to pay to the order of ourselves twenty-five hundred dollars at Union Trust. Co. of Baltimore, Md. Yalue received. “Daniel A. Leonard. “Marie Burke Leonard.” ²⁰⁴ Endorsements: “Daniel A. Leonard. “Marie Burke Leonard. “Daniel A. Leonard.” The note not having been paid, the appellee, on the 26th of February, '1919, brought suit on it against, the appellant in the Superior Court of Baltimore City, and to the declaration, containing the common counts in assumpsit and a special count on the note, the defendant filed the pleas of “never indebted” and “never promised” as alleged, and a third plea for defense; on equitable grounds.

The plaintiff joined issue on the first two pleas and demurred to the third, which demurrer was sustained by the court. The defendant then filed an amended third plea as follows: “The defendant, * * * for amended third plea says: Bor defense on equitable grounds, that the cause of action in this suit is a promissory note filed with the declaration. That said note was a renewal of a note of like amount passed between the parties on or about August 29th, 1917, when the defendant was loaned by said plaintiff the sum of twenty-five hundred dollars, and that at the time of said loan said defendant, at the instance of said plaintiff, conveyed by deed to William O. Pierson, its treasurer and agent, certain real property, which was and is worth many times the amount, of said loan; that at the time of said loan and deed it. was agreed between said plaintiff and defendant, and said agreement was part of the consideration of said deed; that the plaintiff, through said Pierson, its treasurer and agent, on default of payment of said note, should sell said property in the most advantageous way and for the greatest price obtainable in connection with other property adjoining and controlled by the plaintiff for development purposes; that in consideration of the control and authority which this conveyance would give the said plaintiff, they, the said plaintiff, would not enforce the payment of this obligation except as the lots con ²⁰⁵ stituting' the property so conveyed should be sold and disposed of in the dne course of sale of the whole development, and that the first proceeds of said sale should he used in paying off said note, of which the cause of action in this suit is a renewal; and that the plaintiff, through said Pierson, its treasurer and agent, has never endeavored to sell said property and retains the same.” The court sustained a, demurrer to the amended third plea, and the case was then removed to