Oldenburg & Kelley v. Dorsey

Boyd, J., delivered the opinion of the Court. This action was brought by the appellee against the appellants and George Billings. Judgment was rendered against all the defendants, but Mr. Billings did not appeal. It is well settled in this State that when a judgment is rendered against several persons jointly all must unite in an appeal.

Poe Practice, sec. 82.5 and cases there cited. The rule was applied in Lovejoy v. Irelan, 17 Md. 525 , to an appeal from a decree of a Court of equity, but that was subsequently changed by statute. The rule, however, remains unchanged as to cases at law as the statute only embraced appeals from final decrees, and orders in the nature of final decrees, passed by Courts of equity. The proper practice for the appellants was to apply to this Court for a writ of summons and severance, Mottu v. Primrose, 23 Md. 482 , but no such application was made.

Upon service of that writ Billings could have come into this ¹⁷⁶ Court and united in the appeal, or, upon his refusal to do so, a judgment of severance could have been passed by this Court. Cumberland C. & I. Co. v. Jeffries, 27 Md. 535 - The appellee did not make a motion to dismiss the appeal and the attention of the appellants was n ,t called to this difficulty at the hearing. In passing on a motion to dismiss in Mottu v. Primrose, supra, our predecessors overruled it and ordered a writ of summons and severance to issue and, as the case was fully argued, we concluded to consider it on its merits, as, under the circumstances, injustice might have been done the appellants if we dismissed their appeal without giving them an opportunity to move for a severance, although we do not mean this to be taken as a precedent which must be followed in all similar cases. As we have reached the conclusion that there were no reversible errors in the rulings of the Court below, no injury will be done either side by dismissing the appeal, but if we had determined otherwise, the appellants could not have gotten the benefit of it unless we had postponed a decision of the case on the merits until after the writ of summons and severance had been issued, and the proceedihgs thereunder disposed of.

For, inasmuch as the judgment is against Billings and the appellants jointly, he would have the right to determine whether he would unite in the appeal and thus have the judgment of this Court for or against the three defendants jointly, or whether he would refuse to do so and thereby enable this Court to order a severance. It is clear, therefore, that before we could properly enter up a judgment of affirmance or reversal of the judgment below, it would be necessary to issue a summons for Billings, unless he voluntarily appeared, to determine whether there should be a severance. Having sufficiently referred to this question to explain the reasons for the .action we will take, we will now consider the rulings of the Court below. The appellee was engaged in the lumber business, and George Billings, who was a carpenter and builder, was employed in the erection of some houses for the appellants, Oldenburg & Kelley, who were partners.

According to the ap ¹⁷⁷ pellee's testimony he sent to Billings an estimate of the cost of the lumber wanted, and Billings agreed to the price, but the appellee refused to deliver the lumber unless he knew where the money was to come from. Billings told him that Oldenburg & Kelley would attend to that, whereupon the appellee saw Mr. Oldenburg and told him what Billings said. The most important part of the testimony is thus stated in the record: “I said, now, Mr. Oldenburg, will you give mean order for these goods, and he (Oldenburg) said: Mr. Dorsey, you deliver these and I will pay for them, or we will pay for them, everything that goes in those buildings we will pay for. You mean to say you will pay me.

Yes, I will. I understand you will pay me for the goods when delivered. Oldenburg replies, yes. You charge them to Billings, we are responsible for them, and I give you an order for it, therefore you will hold me as well as Billings for the amount.’'’ That was denied by Billings and Oldenburg, but the lumber was furnished and charged to “George Billings, for Oldenburg & Kelley, Highland Ave., near Gough St.” A verdict was rendered in favor of the appellee.

During the trial exceptions were taken to granting the second and sixth prayers of the plaintiff and to the rejection of the defendants’ third, fifth, sixth and eighth. The plaintiff’s two prayers related to the liability of Oldenburg & Kelley and properly submitted the question to the jury, according to the theory of the plaintiff! It was contended by the appellants that a “paper uniting” which passed between Dorsey and Billings was the foundation of the contract between them, and as these prayers ignored that contract, they were liable to mislead the jury. A sufficient reply to that suggestion is that this “paper writing” is not in the record, and hence we cannot determine its effect.

So far as the record discloses the only writing between them was an estimate for the lumber, and if there was anything in that which showed the terms of the proposed sale, who was to be responsible for payments, whether the sale was to be made without security, or anything else that the appellants supposed material, it should have been ¹⁷⁸ included in the record. The mere statement that the appellee submitted an estimate to Billings, and he accepted it, is manifestly insufficient to show a binding contract on Dorsey to deliver the lumber to him, regardless of his ability to pay for it, or the liability of the owners of the building for'it, if, as the plaintiff