National Building Supply Co. v. Gosnell

Thomas, J., delivered the opinion of the Court. There is hut one exception in this case to he considered by the Court, and that is to the granting, at close of the plaintiff’s case, of a prayer instructing the jury that there was no evidence in the case legally sufficient to establish a co-partnership as existing between the defendants, and that the plaintiff was not entitled to recover. The National Building Supply Co., of Baltimore City, a corporation, brought suit on the common counts against William E. Young and the appellee, Charles L. Gosnell, co-partners, trading as William E. Young & Co., in the Superior Court of Baltimore City. The suit was brought under the Practice Act of Baltimore City, Act of 1898, Chapter 123, sections 312 and 313, and there was filed with the declaration an account and affidavit.

The appellee, Chas. L. Gosnell, appeared by counsel and filed three pleas. By the first he alleged that he was not indebted as alleged, and by the second he stated that he did not promise as alleged. By the third plea he alleged that “there was not at the time of the bringing of this suit, or at the time the debt sued on was contracted, a partnership existing between William E. Young and Charles L. Gosnell, and known as W. E. Young & Co.” Attached to these pleas was the following affidavit: ⁶⁴² “State of Maryland, City of Baltimore, to wit: On this 22d of November, in the year 1910, before me, the subscriber, a Notary Public of the State of Maryland, in and for Baltimore City, personally appeared Charles L. Gosnell, one of the defendants named above, and made oath in due form of law that every plea so pleaded by the defendant is true, and that he admits no part of the plaintiff’s claim to be due and owing, and disputes the whole amount; and further, that he, the affiant, verily believes the defendant will be able at the trial of the cause to produce sufficient evidence to support the said pleas, and that he is advised by counsel to file the said pleas.

Witness my hand and Notarial Seal. (Seal) Augustus W. Bradford, Notary Public." There was also annexed to the pleas a certificate of counsel for the appellee, certifying that he advised the appellee, making the above oath and filing said pleas to do the same.” The plaintiff joined issue on the first and second pleas, and replied to the third plea as follows: “And for replication to the third plea says that there was at the time the debt sued on was contracted a partnership existing between William E. Young and Charles L. Gosnell, and known as W. E. Young & Co.” Issue was joined on the replication, and on the 15th of May, 1911, a judgment by default against William E. Young for want of a plea, etc., was extended for $1,025.20, and the case against the appellee was tried before a jury. At the trial the plaintiff offered the following admissions by the defendant: “It is admitted that the goods and materials charged for in the itemized account attached to the declaration were delivered by the plaintiff to William E; Young & Company, at Ten Hills, at the prices charged; it is further agreed that this admission does not preclude any defence Charles L. Gosnell has that he never was a partner of William E. Young.” ' The plaintiff having failed during the trial to offer any evidence tending to establish the partnership alleged in the ⁶⁴³ declaration, or to show any indebtedness on the part of the appellee, the Court below granted the prayer to which we have already referred, and the verdict and judgment being in favor of the defendant the plaintiff appealed. Section 312 of the Act 1898, already referred to, provides: “If the co-partnership or incorporation of any of the parties shall be alleged in the declaration and the affidavit to be filed therewith, as hereinafter provided; or if there shall be filed with the declaration in said cause any paper purporting to be signed by any defendant therein, the fact of said alleged co-partnership or incorporation and the genuineness of such signature shall be deemed to be admitted for the purposes of said caxtse, unless the said affidavit shall further state that the affiant knows, or has good reason to believe, such allegation of co-partnership or incorporation to be untrue,” etc. The appellant contends that as the appellee failed to deny the co-partnership in the affidavit annexed to his pleas, it was admitted for the purposes of the case and it was not required to offer any proof of the partnership at the trial.

The partnership alleged in the declaration was, however, denied in the third plea, and to that plea the plaintiff filed a replication and the case was tried on issues joined on that replication and the other pleas in the case. The issue as to the existence of the alleged partnership was therefore tendered hy the defendant and accepted by the plaintiff, and moreover at the trial of the case the plaintiff produced in evidence the admission of the defendant and an agreement that said admission should not preclude the defence that Charles L. Gosnell never was a partner of William E. Young. Under such circumstances the plaintiff: must be beld to have waived any right he acquired hy reason of the failure of the defendant to dispute the existence of the partnershija in the affidavit annexed to his pleas. In 1 Poe, P. & P. sec. 668, the learned author states the proper practice in cases like the one here presented as follows : “When the defendant’s pleas are filed, the next step in ⁶⁴⁴ the alternate pleadings is to be taken by the plaintiff.

Ordinarily, this is done by putting in one or more replications, joining issue upon, traversing or confessing and avoiding the matters set up