Sharp v. Bates

McSherry, C. J., delivered the opinion of the Court. The appeal in this case must be dismissed because no final judgment has been entered; but inasmuch as the record can again be brought here after the rendition of such a judgment if the merits of the controversy are not now disposed of, we will consider and determine the merits before passing an order of dismissal. On December 9th, 1904, an action of debt was brought by the appellee against the appellant in the Baltimore City Court on a certain writing obligatory which was filed with the declaration. It appears from the declaration and the papers forming part of it, that the Maryland Stamping Company was indebted to the Second National Bank of Baltimore on a promissory note for eleven hundred dollars falling due November second, 1904, and that the appellant, the appellee and three other persons were endorsers on that note.

It further appears that on October 29th of the same year, the appellant and three other endorsers of the note just mentioned wrote to the appellee and signed and sealed the following instrument which is the cause of action in the pending controversy, viz.: October 29th, 1904. “Mr. James W. Bates, “The note of the Maryland Stamping Company for $1,100 held by the Second National Bank will fall due on November 2nd, 1904. “We request you as one of the endorsers to pay the said note at maturity, hereby waiving protest, and agree to refund the said amount to you in accordance with-agreement of January 2nd, 1904, in the proportion of our holdings of stock as shown by the following table: ³⁴⁶ James W. Bates Abraham Sharp Ernest Sharp John R. Korb John B. Stansbury Stock | 5,000.00 1,500.00' 7,925.00 21,900.00 5,000.00 141,325.00 Per ct. 12.00 3-63 19.18 52-99 12.00 100.00 2nd Natl. Bank I 133-10 39-93 210.98 ' 582.89 133-r° $1, 100.00 “We severally agree to pay you the amounts of our respective shares, as above within 30 days from November 2nd, 1904, with interést from that date. “Should any endorser fail to pay his share within said period of 30 days the share of the one so failing to pay is to be prorated among the solvent endorsers, each contributing with you a proportionately increased share, and such increase to be paid within ten days after the expiration of said thirty days. John Korb, (Seal.) John B. Stansbury, (Seal.) Abraham Sharp, (Seal.) Ernest Sharp, ■ (Seal.)’’ It further appears that the appellee, to whom the above paper was addressed, paid" to the Second National Bank the eleven hundred dollar note upon its maturity as he had been requested by the other endorsers to do. He now demands from the appellant the sum of two hundred and ten dollars and ninety-eight cents, being the amount which the latter agreed by the above quoted instrument to repay to the appellee.

To the declaration the appellant demurred; the demurrer was overruled and upon his declining to plead over, a judgment by default was entered against him, and thereupon he took this appeal though the judgment by default had not been extended in dollars and cents. The grounds of demurrer are, first, that the writing obligatory referred to in the narr. and above transcribed, does not constitute a valid completed contract; secondly, that the facts alleged in the declaration do not form, by operation of law, a valid contract by offer and acceptance; and thirdly, that the suit was prematurely brought. We do not think any of these grounds can be maintained. ³⁴⁷ No precise form of words is necessary to create a bond or obligation ; and, therefore, any memorandum in writing under seal, whereby a debt is acknowledged to be owing, will obligate the party to pay ; for it is said that any words which prove a man to be a debtor, if they be under seal, will charge him with the payment of the money. Cover v. Stem, Ex., 67 Md. 451 , and cases there cited.

The argument of the appellant, however, is, that the paper-writing though under seal is merely an offer to pay and therefore not an obligation to pay, and that it did not and could not become binding as a writing obligatory until accepted by the appellee by an instrument under seal. We do not so interpret it. The paper embodied the several and distinct obligation of each of the signatories to pay a definite and ascertained sum at a specified time upon the happening of a named condition. It therefore constituted a perfectly valid