Shriver v. Caples

Pattison, J., delivered the opinion of the Court. This appeal is from a judgment entered in the Circuit Court for Baltimore County in favor of the appellee, plaintiff below, upon a verdict rendered by the court sitting as a jury. The evidence of the appellee was that he, the owner of a garage in Reisterstown in Baltimore Connty, rented it to ⁵⁷² the appellant, agent for the sale of Ford ears and tractors, and agreed to finance him in the purchase of cars and tractors bought by him, for which the appellee was to receive one-half of the profits from the sale of them. Under the agreement between the appellee and the appellant, the ears and tractors, upon their arrival at Eeisterstown, were to be paid for by the appellee, and the appellant was then to sell them, and he in the sale of them was to assume all loss resulting from the nonpayment of the purchase money therefor.

The money so advanced by the appellee for the purchase of the •cars and tractors was by the agreement to be repaid to him. At times the appellant took from purchasers their notes in payment or part payment of the purchase money for the cars and tractors sold to them. These notes were made payable to the appellant and, to enable him to obtain the money thereon, they were first endorsed by him and delivered to the appellee, who endorsed and discounted them at bank. The appellant, on the other hand, testified that while he was, in name, agent for the sale of the cars and tractors mentioned, the appellee was, in fact, the agent therefor.

That the agency was in his name because the appellee could not secure the agency owing to the fact that he did not live in Eeisterstown, but several miles away; that it was to conceal such real agency in the appellee that the notes were taken in the appellant’s name and, being so taken in his name, it became necessary for Mm to endorse the notes to the appellee, and that such endorsement was for that purpose alone; that the notes were all taken, with one exception, upon the approval of the appellee, and it was agreed between them that he, the appellant, should in no sense be liable for any default in the payment of the notes, but all such loss should fall upon the appellee. A number of the notes so taken by the appellant and endorsed and delivered by him to the appellee, and by the latter endorsed and discounted at bank, were not paid by the makers, and as a result thereof the appellee was required to pay them, in consequence of which the proceeds derived ⁵⁷³ from the discounting of said notes, which, after deduction of profits, the appellee had been allowed to retain as credits upon the amount paid by him for the ears and tractors bought by the appellant, were withdrawn from such application, leaving those amounts still owing by the appellant to him upon the money so advanced; and the suit in this ease was brought upon the common counts to recover the money so owing and not upon the notes. Bullock v. Campbell, 9 Gill, 182, 184 , and Nelson v. Close, 147 Md. 214, 218 . At the conclusion of the evidence, the defendant offered five prayers: The first asked that the case be taken from the consideration of the jury on the ground that there was no