Seff v. Brotman

Burke, J., delivered the opinion of the Court. This is the defendants’ appeal from a judgment in favor of the plaintiffs entered in the Baltimore City Court. The suit was an action of assumpsit, and was brought under the Practice Act. The declaration contains the six common counts and one special count.

The special count alleged that the plaintiffs were licensed real estate brokers in the city of Baltimore, and that on or about the 17th day of July, 1907, the defendants employed them to sell certain property, which is particularly mentioned in the count, and that they promised and agreed to pay to the plaintiffs a commission of two and a-half per cent as compensation for their services; and that in pursuance of said employment the plaintiffs sold the property for seven thousand dollars to Isaac Kader, and that the purchaser entered into a contract with the defendants to purchase the same, and did purchase the same by the payment of the balance of the purchase price in accordance with the terms of the contract; that by reason thereof the plaintiffs were entitled to receive from the defendants the sum of one hundred and seventy-five dollars; that the plaintiffs have demanded of the defendants the payment of said sum, but that the defendants have failed and refused to pay the same, and continued so to do. ²⁸² A proper account was attached to and filed with the declaration, and an affidavit as required by the Act was annexed to the narr. The defendants were summoned to the October Rule Day, and within fifteen days thereafter filed pleas to the action. To the first six counts of the narr they pleaded that they never were indebted as alleged; and for a second plea they averred that they never promised as alleged and for a third plea they said, that the plaintiffs did not, as real estate brokers, sell the property in said count mentioned to the said Isaac Kader for the defendants at and for the sum of seven thousand dollars, and that the said Isaac Kader did not pay these defendants seven thousand dollars for said property, and that the defendants never were indebted as alleged in said count. On October 30th, 1907, the plaintiffs filed a motion for a judgment by default against the defendants for want of sufficient pleas and affidavit of defense.

On January 24th, 1908, this motion was heard by the Court, and on that day judgment by default was entered, and on the same day the judgment was extended for one hundred and seventy-eight dollars and seventy-three cents, damages assessed by the Court and costs of suit. The affidavit attached to the pleas is in proper form, and it is not’ claimed that it is in any manner defective or insufficient, and to it is appended a certificate of the defendants’ counsel stating that he had advised the party making the affidavit to the pleas to do so. Upon this state of facts, the single question for our decision is: Did the defendants plead a good plea to the declaration? If they did, the Court had no right to enter a judgment as by default against them, because under the statute no such judgment can be entered where there is a plea, properly verified, showing a good defense to the action.

In Gemmell v. Davis, 71 Md. 458 , in which case the construction of this Act was under consideration, the Court, speaking through Chief Justice Alvey, said: “The obvious purpose of the Act is not only to furnish a short and expeditious method of recovery in the class of actions mentioned, but, by requiring disclosure ²⁸³ under oath, as to the real amount or matter in dispute or actual contest between the parties, to avoid unnecessary-trouble and expense in the trial. And while the construction of the statute should be such as to afford to every defendant a full and fair opportunity to make all defenses to the action against him, no such restrictive construction as against the rights of the plaintiff should be adopted as would, in any event, defeat or frustrate the beneficial objects contemplated by the Legislature. By the terms of the section quoted, the plaintiff has a right, at any time after the expiration of the