Ryan v. Canton National Bank

Pearce, J., delivered the opinion of the Court. This is an action brought by Timothy Ryan in the Circuit Court of Baltimore County against the Canton Nat. Bank of Baltimore County to recover for services rendered by him, the case being removed for trial to the Superior Court of Bal ⁴³⁸ timore City. The declaration contained only the common counts, with which was filed the following bill of particulars: “Canton National Bank of Baltimore County, Md. To Timothy Ryan, Jr., Dr. To 24 months and 23 days’ services conducting the Tin Can Boxes and Specialty business at 714 Water St., Baltimore, Md., from February 27th, 1899, to March 21st, 1901, at $358.33^ per month $8,874.71 Cr. :By cash 24 months and 23 days-monthly payments from February 27th, 1899, to March 21st, 1901, at sundry times on acct of said services.....................................................................$2,476.67 August 22nd, 1901.

By cash on account of said services per receipt ...............................................................................$1,000.00 $3,476.67 Balance due....................................................$5>398-o4” The pleas were, “never promised as alleged;” “never indebted as alleged,” and “the alleged cause of action did not accrue within three years prior to the bringing of this action.” Issue was joined on the first and second pleas, and to the third plea there was a replication that the cause of action did accrue within three years before the suit was brought. The verdict and judgment was for the defendant, and the plaintiff has appealed. During the course of the trial four exceptions were taken to rulings upon the evidence and a fifth exception to the ruling upon the prayers and upon the plaintiff’s special exceptions to defendant’s prayers, and the plaintiff’s motion to exclude certain testimony which had been admitted in evidence subject to exception. It appears from the bill of particulars filed with the declaration that the services rendered were terminated March 21st, 1901, and the suit was instituted August 1 ith, 1904.

It also appears that all the monthly payments made for said services, were made before August nth, 1901, and there is no claim made by the plaintiff that any person in behalf of the bank ever made any new promise to pay for said services, or ever made any express acknowledgment of existing indebtedness therefore. It is contended, however, by the plaintiff, that the sum of $1,000 which is credited in the bill of particulars on ⁴³⁹ August 22nd, 1901, and which was in fact paid on that day, was a recognition or acknowledgment’ of such existing indebtedness, and that the bar of the Statute of Limitations, which would otherwise prevent recovery by the plaintiff, was thus removed.. The defendant contended that there was an express contract for the rendition of these services for the sum of $100 per month (which is shown by the bill of particulars to have been fully paid) and that the sum of one thousand dollars subsequently paid, on August 22nd, 1901, was a gratuitous payment, made solely because the plaintiff had become dissatisfied with his contract, and had appealed to the defendant for additional compensation after the termination of said services, not as a matter of right, but as of favor. The plaintiff’s contention is that there was no express contract or agreement as to the amount of compensation he was to receive for his services, and the monthly rate of compensation charged by him in the bill of particulars is based upon the profits of the business to the defendant during the rendition of these services as computed by the plaintiff himself.

The plaintiff submitted two prayers presenting his theory of the case, both of which were refused, and the defendant submitted two prayers, both of which were granted. Whether there was, or was not an express contract, the plea of limitations must prevent recovery by the plaintiff, unless the payment of $1,000 made August 22nd, 1901, is held to be a recognition of existing indebtedness, and that question will now be considered, as presented by the defendant’s following granted prayer: “The Court instructs the jury that according to the bill of particulars of plaintiff’s claim filed among the pleadings, and the testimony of the plaintiff, the plaintiff’s cause of action accrued more than three years before the bringing of this suit (and) that there is in this case no evidence legally sufficient to prove any new promise, or acknowledgment of the plaintiff’s claim sufficient to remove the bar of the Statute of Limitations set up by the defendant’s third plea, and therefore the verdict of the jury must be for the defendant.” ⁴⁴⁰ The plaintiff testified that in February, 1899, the firm of Kirwan & Tyler was engaged in the manufacture of tinware, and being heavily indebted to the Canton National Bank, an arrangement was entered into between the said bank, Kirwan & Tyler and himself, by which they sold to him their plant, business, and stock in trade, for the sum of $6,000, and that thereafter and up to March 21st, 1899, the business was conducted in his name, but for the sole benefit and account of said bank; that this $6,000 was paid by him from the proceeds of his note discounted by said bank for that purpose, and that this note was subsequently paid out of the proceeds of said business; that he entered into the service of the bank on February 27th, 1899, and left it on March 21st, 1901, when the business was sold to the American Can Company; that his duty was to manage and supervise the whole business, and that when money was needed beyond the cash receipts of the business, it was procured upon his notes discounted by said bank with the endorsement of his brother Wm. P. Ryan, all of which notes were paid out of said business; that in October, 1899, in order to guard against' the involving of his estate in event of his death, an agreement in writing was executed by the bank stating that the plaintiff had purchased said .business at the instance and request of the bank and agreeing in consideration thereof “to hold' safe and harmless, and to fully protect and satisfy the said Timothy Ryan Jr., because of his purchase of said business, and the said William P. Ryan because of his present and future indorsements on account of said business, it being the intention of this paper to fully protect the said Timothy Ryan, Jr., and William P. Ryan, and to save harmless from any loss, injury or liability, that may come to them, or be imposed on them by reason of the purchase and conduct of said business so purchased from Kirwan & Tyler.” He further testified that the first arrangement above mentioned was made through the Kirwan & Tyler Committee of the bank, composed of Mr. Horner, Mr. Furst and Mr. Kendig, and that when the agreement was executed, Mr. Horner said, “I wish you success, and when the Ryan boys are satisfied we ⁴⁴¹ will turn the business over to Kirwan & Tyler;” that when he first began the business he drew $2.50 a day, but after one or two weeks he went to see Mr. Furst and told him he could not conduct that business; that he had to have living expenses, and Mr. Furst suggested that he draw $100 a month for living expenses, which he did; that this did not compensate him at all and that he did not look upon it in that light. In reply to a question from his counsel how he arrived at the monthly charge of $358.33 in his bill of particulars, he said he considered his services as a bookkeeper were worth $150 per month, and that as he secured a position with the American Can Co. after the sale to it at $2,500 per annum upon the recommendation of the bank, in which he had no books to keep, he thought he was worth as much to the bank, and at that rate $4,300 a year, the monrhly payments would be $358.33- Being asked what were the circumstances of the payment of $1,000 to'him credited in the bill of partícülars, he said he received that check about August 19th, 1901, and was astonished with the small compensation for his services; and he produced a copy of the receipt therefor which was admitted in evidence subject to exception, and which was as follows: “Mr. John W. H. Geiger, Baltimore, Aug. 22, ’01.

Cashier Canton Nat. Bank. Dear Sir: “The receipt of your check dated August 19th, 1901, for the sum of one thousand dollars in part payment for services rendered Canton Nat. Bank in conducting the Tin Can Boxes and Specialty business at .714 Water St., Baltimore, February, 1899, to March, iyoi, and which was purchased by me at the instance and request of the Canton Nat.

Bank is hereby acknowledged. • Timothy Ryan, Jr.” He said that after receiving this check he spoke twice or three times to Mr. Furst “about the meagreness of his reward” and that Mr. Furst said he was “sorry it was not more, that that was the best he could do ; the directors were not inclined to give me anything ;” that he knew Mr. Furst was a liberal man and did the best he could. He explained that he did not feel disposed to sue the bank until Mr. Furst left the directory, ⁴⁴² and it subsequently appeared in proof that Mr. Furst withdrew in 1902. The plaintiff produced the expense account kept by him while he conducted this business and rendered monthly to the board of drectors which showed that during that period he regularly drew $100 per month without indicating for what this sum was drawn. He also testified that on March 22nd, 1901, he paid to the bank $35,000 in cash and stock of the American Can Company, being the purchase-money of the plant and business sold to it; that on July 2nd, 1901, he paid said bank $14,000 from collections made from said business, and on March 27th, 1902, $550.08, being final settlement of said business, without deducting from any of said payments anything whatever for the compensation claimed in this suit.

On cross-examination,'he said he was engaged as a bookkeeper at $780 a year when he entered the defendant’s service, and that the highest salary he had ever received at that time was $1,200 a year, in a position in the Water Department, which Mr. Furst aided him to secure, and that he was green at the tin business when he took charge of it; that neither the Canton Bank nor any one in charge of it agreed to pay him $4,300 a year, but that he fixed that amount by putting his services as book-keeper at $1,800 a year, and his other services at $2,500 a year; that he studied this out in his mind in September or August, 1901, and that at the time he received the $1,000 check he thought he was entitled to half the profits which were $14,000. When asked where his salary account was he said “you are looking at it now, my salary or expense account,” that being the expense account before mentioned herein. He admitted that he had never sent any bill for services or made any demand therefor, before instituting this suit, and the check for $1,000 was produced, which bore no evidence for what it was given. He testified that when he received the $35,000 from the American Can Company, he so informed Mr. Horner, who told him to keep the check and get a settlement with the bank, but he replied that the money belonged to the bank which.would treat him right, and he would not keep the check, though Mr. Horner said they ⁴⁴³ would not treat him right.

Mr. Horner was not produced as a witness in the case but it was shown that his illness was such as to make it impossible to take his testimony. The plaintiff admitted that until this suit was brought the directors of the bank knew nothing about the claim which is made in this suit. On re-direct examination, his counsel asked him this question —“Mr. Ryan, in your last answer you said the bank didn’t know of your claim until you brought suit, didn’t these directors with whom you — How did they know it.” He replied “I told them repeatedly. They knew all the trouble I had with Mr. Kerwin,” to which his counsel said “We aren’t discussing trouble.

Talk about your claim. Did any member of the committee know about your claim?” Answer. “Mr. Furst knew of my claim. I told him I was dissatisfied with the reward I had gotten.” There was no other testimony for the plaintiff. Mr. Furst testified for the defendant “that he suggested Mr. Ryan for.this position and asked him whether he would accept the employment, and he said he would; that he told him the pay would be better than he was then getting, which he said was some $700 ; that he told the committee Mr. Ryan’s services could be secured, and suggested that he be given $100 per month, to which the committee agreed, and„ the plaintiff was engaged to manage the Kirwan & Tyler business for the bank, and he continued in charge till ‘the business was sold out.” After this sale, Mr. Furst says, “there was some $5,000 or $7,000 over what Kirwan & Tyler owed us, and I went before the board and said before paying this to other parties whom Kirwan & Tyler owed, I thought the Ryan boys ought to receive some remuneration as they worked faithfully and diligently and I thought $1,000 apiece would not be amiss, and it was granted.

I considered this a gratuity for he agreed to come with us for $100 a month ; after three years it came to me like a clap of thunder out of a clear sky, when I found he had sued the bank for services. I never was more surprised as I had been a lifelong friend, and he never came to me regarding it.” ⁴⁴⁴ During the examination of Mr. Furst, the minutes of the meeting of the directors of the bank on June 26th, 1901, were read in evidence, and among the proceedings was the following:” The Kirwan committee recommended that Messrs. Wm. P. Ryan and Timothy Ryan, Jr., be each paid $1,000 for ■their services; also that the balance of money on hand due the account be referred to the bank’s attorney (Mr. Brinton) for settlement, and recommend that it be paid to Mr. Geiger as far as it goes to satisfy his claim.

Both recommendations