Reece, Adm'r v. Reece

Barnes, J., delivered the opinion of the Court. This is an appeal from a judgment entered by the Circuit Court for Garrett County in favor of S. Earl Reece, appellee (plaintiff below), in the amount of $34,200, for alleged personal ⁶⁵² services performed during the period 1930-1949 for appellant’s decedent, Ida M. Rhoads. We are asked to reverse the judgment on the ground that there was no legally sufficient evidence upon which the appellee could recover, and because the action is barred by the statute of limitations. The parties to this appeal are brothers, and both live in Westernport, in Allegany County.

Ida M. Rhoads, was their aunt and also a resident of Westernport until her death on December 30, 1959. Upon her death the appellant, Robert M. Reece, probated a Last Will and Testament dated March 22, 1956 in the Orphans’ Court for Allegany County and qualified as administrator cum- testamento wmexo of her estate. On August 5, 1960, four days before the administrator’s notice to creditors was to expire, the appellee, S. Earl Reece, filed a claim against the estate in the amount of $53,500, a claim which the administrator rejected in writing on October 10, 1960. Earl then filed suit on April 7, 1961 in the Circuit Court for Allegany County; the case was later removed to Washington County, and then removed again to Garrett, where it was heard by the court without a jury on January 17,1964.

Plaintiff claimed in his declaration that he had rendered personal services of substantial value to the Woodland Lumber Company, a corporation of which both he and Miss Rhoads were officers, directors, and stockholders, from 1930 until its dissolution in 1952, and that' he ■ had given advice to Miss Rhoads individually in connection with her business and personal affairs from 1930 until the date of her death in 1959. His cause of action is based upon two written documents, not under seal, both of which are dated December 2, 1949. Both are set forth in the footnote below; both are rough in appearance, and the typing on each, very poor. 1 ⁶⁵³ The testimony before Judge Hamill was not lengthy and consisted of but three witnesses. The first witness, William H. ⁶⁵⁴ Jenkins, as the Chief Deputy Register of Wills for Allegany County, testified that the signature on the will dated March 22, 1956 was that of Ida M. Rhoads; that the docket entries for the Rhoads’ estate show a claim filed by the plaintiff on August 5, 1960 in the amount of $53,500; and that his files contained a carbon copy of a letter from the defendant to the plaintiff rejecting the claim.

Verified copies of the will, the docket entries, and the letter were introduced into evidence. The second witness was Arthur P. Myers, a handwriting expert of approximately forty years’ experience, whose qualifications were admitted. After familiarizing the court with the methods he employed (and with the circumstances under which he was retained as an expert in this case), he testified that the ⁶⁵⁵ evidence was “irresistible, unanswerable and overwhelming,” that the signatures of Ida M. Rhoads, on the two documents dated December 2, 1949 and on the probated will dated March 22, 1956, “were written by one and the same person and written by one and the same source and one and the same mind.” The finding by the trial court that the signatures of Ida M. Rhoads to the documents dated December 2, 1949 were valid was fully sustained by this testimony. The third witness was the plaintiff, S. Earl Reece.

He testified that from 1930 until 1952 he was the “territorial manager for an outside business” located in Baltimore, Maryland, the nature of which was not made clear, from which he earned “approximately $4,500 to $5,000 a year.” However, he testified that he also had an association with Woodland Dumber Company “from 1930 until it went out of business” in 1952. Plaintiff regularly attended corporation meetings, and, from time to time, served as a director, as chairman of the board of directors, president, general manager, and auditor. Certified letters from a Philadelphia bank establish that Mr. Reece was authorized to draw checks on the company’s bank account. Certified copies of the articles of incorporation and of the minutes of various corporate meetings were introduced into evidence.

The ownership of the company’s stock was testified to be as follows : Mrs. Susanna Campbell 25 shares Jeremiah T. Robinhold 25 shares S. Earl Reece 15 shares Ida M. Rhoads 685 shares These 750 shares outstanding at $100 per share equalled the total $75,000 capital authorized by the company’s charter, as amended. The plaintiff’s testimony does not reveal the nature of the services which he claims to have performed either for the lumber company or for Ida M. Rhoads individually. He did testify that he received “not one cent” from the corporation during its entire existence, and that he had “no salary arrangement whatever” with it. In reply to a question “Why didn’t you receive any money?”, he stated “Well, the Woodland Lumber Com ⁶⁵⁶ pany, as it states right in those minutes, salaries were to be continued to Mr. Robinhold and Ida M. Rhoads only and I agreed I would be paid later on with a contract my aunt and myself had made.” He also testified that he did not “intend to work all these years for nothing,” and that the work he did would be valued at more than $150.00 a month “for the responsibility.” As indicated later, this evidence was subsequently stricken out by the trial court upon the motion of the defendant.

The plaintiff, Reece, was not allowed by the trial court to testify whether he had any arrangement with anyone else in respect to remuneration for services rendered the company, nor what responsibilities would justify a salary of $150 a month, nor whether, during “these 22 years” he regarded himself “as performing services for Ida M. Rhoads.” Except for the recitals in the two written instruments of December 2, 1949 there is no evidence admitted by the trial court tending to show what “advice” or services plaintiff rendered to the decedent “concerning her personal affairs,” as asserted in Count II of his declaration. At the conclusion of Mr. Reece’s testimony the plaintiff rested his case. The defendant then moved: 1) to “strike out all testimony of the plaintiff, Earl Reece, pertaining to the services performed for Woodland Lumber Company and for his testimony pertaining to the officers of the company”; 2) for a dismissal on the ground that the plaintiff had shown no right to relief. 2 The lower court granted the defendant’s first motion; it withheld a ruling on the second. In its written opinion of July 31, 1964 the court ordered that judgment be entered in favor of the plaintiff, but only as to services performed during the period from 1930 to 1949.

The court reached the conclusion that the plaintiff was not entitled to judgment for services allegedly performed for the period December 2, 1949 to December 30, 1959 by the following process of reasoning: 1. The contract did not recite the performance of any services after December 2, 1949 nor did it contain a promise to perform any ⁶⁵⁷ subsequent to that date. 2. Testimony by the plaintiff as to “future services” would contravene the provisions of Article 35, Section 3 of the Annotated Code. 3. Since there was no proof by someone other than the plaintiff with regard to services performed after December 2, 1949 for the decedent, the plaintiff failed to establish a prima facie case as to those “future services.” The appellee disputes the propriety of the action taken by the court below with respect to the defendant’s first motion.

He urges us to hold that that court erred in striking the exhibits and testimony relative to the work performed by S. Earl Reece for the Woodland Lumber Company. These issues, however, are not properly before us. In the absence of a cross-appeal the appellee ordinarily cannot complain of adverse or erroneous rulings on the evidence and pleadings, even though they may be harmful or prejudicial. Harrison v. Robinette, 167 Md. 73, 83 , 173 A. 2d 60 (1934) ; Mezzanotte Constr.

Co. v. Gibons, 219 Md. 178, 183 , 148 A. 2d 399 (1959) ; and see cases collected in 2 M.L.E., Appeals, section 353. In any event he does not urge a reversal or modification of the judgment (as, for example, to allow a recovery for the period 1949 to 1960, the year of Miss Rhoads’ death) but only that it be affirmed, so the point would appear to be academic. The parties to this litigation entertain divergent theories of the law applicable to the facts as established. The defendant administrator, appellant here, contends that the plaintiff must offer proof that he performed the terms of the contract, that is, that he in fact rendered the services for which he now seeks to recover.

He then postulates Art. 35, Sec. 3 as an insurmountable barrier, prohibiting plaintiff Reece from testifying: a) that he made a contract with Ida M. Rhoads; b) that he rendered services for her (before or after the date of the contract); or c) that he rendered services to the corporation (on the theory that, since decedent owned the large majority of the shares, the fiction of the corporate entity should be disregarded). The appellant also believes it encumbent upon the plaintiff to show affirmatively that he has not been paid. In view of the inability of the plaintiff to testify to the necessary facts, and in the absence of other, independent testimony, the appellant submits ⁶⁵⁸ that the plaintiff, Reece, has failed to produce legally sufficient evidence to entitle him to recover. The appellee, for his part, does not urge any particular interpretation of the Evidence Act upon the Court.

Rather, he argues that he has proved the signature on the contracts , to be that of the decedent, in the manner prescribed by Code (1964 Cum. Supp.), Article 35, Section 12; that proof of a signature on a contract is prima facie proof of the truth of its contents; that an admission or recital in a written contract (otherwise sufficient) that it was made for a valuable consideration, in the absence of contrary evidence, entitles the plaintiff to judgment. Simply put, the appellee contends that the defendant administrator has failed to disprove the prima facie case established by the recital of a valuable consideration in the contract introduced by the plaintiff. The trial court awarded judgment on this theory.

We think that the plaintiff is right in asserting that a recital of facts which may constitute consideration in an unsealed written agreement, is prima facie evidence of those facts. Glenn v. Grover, 3 Md. 212, 228 (1852). And although some courts have said that the promisor is “estopped” to deny the statement that he has received consideration, or that the presumption arising from the recital of consideration is “irrebuttable,” most states, including Maryland, hold that the parol evidence rule does not prevent a rebuttal of the truth of that statement by extrinsic evidence.. See Williston, Contracts (3d ed.) section 115B and cases there collected; 1 Corbin, Contracts, section 130.

The Restatement of Contracts takes this view: Restatement, Contracts, Section 82, comment b states: “A recital that a stated consideration has been given is in every case admissible evidence of the fact, though not generally conclusive.” The modern and accepted view is that the parol evidence rule prevents only proof that “the promises and agreements contained in the agreement” were not the promises and agreements of the parties thereto. Restatement, Contracts, sections 237, 243, 244. It follows in this case that if the prima facie evidence of consideration created by the recital or admission in the contract—(that S. Earl Reece had performed personal services for Miss Rhoads)—was never rebutted or disproved, then, con ⁶⁵⁹ trary to the defendant’s suggestion, the plaintiff was not obligated to offer further, additional proof that he performed those services; and failure to introduce such further evidence of the uncontradicted fact does not require a reversal of the judgment granted below. Because of our conclusion upon this point, we find it unnecessary to consider to what extent Article 35, Section 3 prohibits the plaintiff from testifying to the services performed for Ida M. Rhoads or for the corporation in which she owned a large interest, or to the circumstances inducing and surrounding the making of the written agreements of December 2, 1949.

A