Porter v. Berwyn Fuel & Feed Co.

Finan, J., delivered the opinion of the Court. On August 5, 1963, the appellee (plaintiff below) Berwyn Fuel and Feed Co., Inc. filed a declaration in assumpsit, motion for summary judgment and affidavit in support thereof in the Circuit Court for Montgomery County, claiming the sum of $1,748.47 due from Gilbert L. Porter, appellant, and Barbara S. Porter, husband and wife, (both defendants below) based upon three of the common counts (goods bargained and sold, work done and materials furnished and money found to be due on an account stated). The appellants filed a general issue plea and in their affidavit and amended affidavit, in opposition to appellee’s motion for summary judgment alleged satisfaction of the claim by way of an assignment. On December 3, 1964, defendants filed a third-party claim against Elmer W. Sarbacher and Helen M. Sarbacher, his wife, alleging that the third-party defendants had ordered from appellee certain of the materials alleged by appellee to be the subject of the original suit without the consent of the defendants, and that the third-party defendants had assigned to defendants “the total sum of $4,200.33 from such sums as may become available” to the third-party defendants from “construction loan draws from the Citizens Building and Loan Association or from the sale of houses erected * * * in the subdivision known as ‘Forest Park,’ Prince George’s County, Maryland,” this being the assignment that defendants alleged they, in turn, assigned to appellee in full satisfaction of the original claim.

Defendants’ motion for a directed verdict at the close of appellee’s case was denied and at the close of all ⁶³² evidence the lower court directed verdicts in favor of defendant Barbara Porter and for appellee as against the remaining defendant, Gilbert Porter. Although it does not appear in the record, apparently a directed verdict was granted in favor of the third-party defendants. From entry of judgment against him in the amount of $1,748.47, defendant Gilbert Porter has taken this appeal. Appellant, Porter, a drywall contractor, for some years prior to the suit, maintained an open account with appellee for building materials used by appellant in his business.

When suit was filed on August 5, 1963, appellant’s account showed a balance due of $1,748.47. From the exhibits and testimony adduced at trial it is apparent that some of the materials were not ordered by the appellant, but were ordered by Aaron Realty which was the prime contractor on the “Forest Park” job and were signed for by the third-party defendant Elmer Sarbacher. The record is not clear as to exactly what was the third-party defendants’ relationship with Aaron Realty, but at the very least Elmer Sarbacher was an employee of Aaron Realty during the progress of the “Forest Park” job, that much being admitted by the third-party defendants’ answers to interrogatories. Appellant’s contention is that the Sarbachers were trading as Aaron Realty, and appellant, in his testimony, referred to Aaron Realty and the third-party defendants as a single entity.

Evidently, the third-party defendants became indebted to the appellant for work done and materials supplied for the “Forest Park” job, and as a consequence thereof executed an assignment of funds “as may become available * * * from construction loan draws * * * or from the sale of houses” constructed in the “Forest Park” subdivision. The date of this assignment does not appear in the record, nor is the assignment under seal. This assignment was reassigned shortly thereafter to the appellee and appellant testified that Mr. Mothershead, vice-president of appellee, accepted the assignment as payment of appellant’s bill. Mr. Mothershead contradicted this when he testified: “This [the assignment] was given to me as a secondary security to make sure I got my money.” He further testified: “We would hold this [the assignment] in our records to help him [appellant] to get his money from Aaron Realty.

It was ⁶³³ more or less a secondary or another force or pressure to the general contractor to try and help Porter get his money.” This assignment had not been admitted as evidence when the appellant moved for a directed verdict at the close of the plaintiff’s case but was subsequently introduced by the appellant before he rested his case. The record in this case presents a hodge-podge of confusion and the task of the Court has not been lessened by the action of counsel, for all parties, in submitting this matter on briefs and the record without the benefit of oral argument. The appellant in his appeal raises five issues, only two of which merit discussion: (a) that the court erred in granting judgment for appellee in view of the fact that the testimony revealed that certain materials were not ordered by appellant nor were they delivered to him and (b) that the assignment o£ funds which appellant delivered to appellee operated as an accord and satisfaction of the claim. I Contrary to the contention set forth in the appellant’s brief the record shows from the appellant’s testimony that, whether or not he ordered the materials in question, he nevertheless used them in the houses on which he was working in his capacity as a subcontractor.

Appellant Gilbert L. Porter on direct examination testified: THE COURT: Well, you mean that no one on this job ever accepted deliveries for you besides your men ? THE WITNESS: Well, let me see. There was a particular instance when payment was slow and on occasion he would go ahead and order the material. THE COURT: Who would ?

THE WITNESS: Mr. Sarbacher or Mr. Farrell, and we would put it on the job. There was many cases when the job wasn’t ready for drywall and I would tell him this and he would go ahead and order anyway. THE COURT: Ordered on your account? THE WITNESS: Yes.

THE COURT: And you received the bills for it ? THE WITNESS: Yes. THE COURT: What did you do then ? ⁶³⁴ THE WITNESS: This was one of the reasons there is a dispute. THE COURT: What did you do at the time when you received a bill for it ?

THE WITNESS: Well, we used the material in whatever house they zvere delivered in. There’s no doubt we used it on the job. The fact of the matter is when I didn’t have control when to order and when not to order because he was slow paying. How could I be responsible for it.

I mean— THE COURT: You will have to ask your lawyer that. In other words, all of the items in this exhibit, 1-A, you did use on the job but you say you did not order or did not receive it? THE WITNESS: Right. THE COURT: But you used a part of it in your work ?

THE WITNESS: Maybe not at that time, the particular time, but a week or so later. It’s hard to say. (Emphasis supplied.) The appellant’s testimony was offered by him on his own behalf and is uncontradicted. His contentions that someone else ordered the material, or that delivery was made to some one other than himself becomes fatuous in view of the fact that the material was incorporated in the work he was doing as a subcontractor and it inured to his benefit.

II Counsel for appellant makes much of the fact that, through what he describes as interference of the trial judge, the assignment had not been admitted in evidence at the time he moved for a directed verdict at the close of the appellee’s case, intimating that had the assignment been admitted in evidence the directed verdict would have, or should have been granted. The record shows that the assignment was eventually admitted in evidence and the Court fails to see where it helps the appellant’s case. There is conjecture as to just what is the true nature of this assignment, which is not under seal, which is undated and which reads as follows: “FOR AND IN CONSIDERATION of the sum of One ($1.00) Dollar and other good and valuable ⁶³⁵ considerations we, the undersigned, hereby assign to Porter and Porter, Dry Wall Contractors, 9102 Piney Branch Road, Silver Spring, Maryland, the total sum of $4,200.33 from such sums as may become available to us from construction loan draws from the Citizens Building and Loan Association or from the sale of houses erected on Rots 4, 5, 6, 24 and 25 in the subdivision known as “FOREST PARK”, Prince George’s County, Maryland. “This assignment of funds shall be due and payable in the amount of $840.07 from funds becoming available from the aforesaid sources in connection with the dwelling house constructed on each of the aforementioned lots. Elmer W. Sarbacher Helen M. Sarbacher “FOR AND IN CONSIDERATION of the sum of One ($1.00) Dollar and other good and valuable considerations we, the undersigned, hereby assign to Berwyn Fuel and Feed Company, Inc., 5107 Berwyn Road, College Park, Maryland, all of our right, title and interest in the above assignment.

Porter and Porter, By: Gilbert E. Porter” (Emphasis supplied.) The only way that this assignment could have served as an ■effective defense for the