Thompson v. Young, Colbourn & Co.

Schmucker, J., delivered the opinion of the Court. On December 13th, 1894, Lewis Thompson and Isaac E. McLain, co-partners, trading as Lewis Thompson, brought an action of assumpsit by titling against James T. Young, Charles H. Colbourn, Littleton F. Hall, Charles O. Melvin, Lewis Thompson, who was also one of the plaintiffs, and William B. Allwine, co-partners, trading as Young, Colbourn & Co. All of the defendants were summoned except Thompson, who was already in Court as plaintiff, and Allwine:- On February nth, 1895, the plaintiffs filed their declaration which contained in addition to the common money counts a count on a promissory note of Young, Colbourn & Co., drawn to the order of B. F. Sturtevant & Co., which the declaration alleged had been dishonored by its ⁷³ makers, and thereafter paid by the plaintiffs. In response to the demand of the defendants the plaintiffs filed a bill of particulars which set forth the promissory note as their sole cause of action. After pleas had been filed by the defendants and issue joined thereon the plaintiffs obtained leave of Court to amend their declaration, and then filed a new one by way of amendment which contained the common money counts, and three counts on the note of Young, Culbourn & Co. One of these counts simply alleged the making and dishonor of the note, another contained the same allegations, and further averred that the note had been endorsed 'to the plaintiffs before its dishonor, and the third count contained the same allegations as the second with the additional one that after the dishonor of the note the plaintiffs had paid it.

This amended declaration was demurred to and the Cburt sustained the demurrer but gave to the plaintiffs leave to again amend their narr. and also the titling and writ. The plaintiffs, in pursuance of the leave so obtained, filed a second amended declaration, but upon objection on the part of the defendants the Court disallowed the amendment, as made. The plaintiffs then declined to plead further and judgment of non pros, with costs was entered in the case and the plaintiffs appealed. Before appealing, they made a motion to strike out the judgment, and the Court overruled the motion, but, as that action of the Court was clearly within its discretion, it does not come up for review on this appeal.

The record does not show whether a rule was laid on the plaintiffs to plead further when their proposed amendment was disallowed or that any time was fixed within which they were to file a new declaration, but in the absence of any proof to the contrary this Court will assume that the lower Court acted in accordance with its rules in entering the judgment of non pros. Rutledge v. McAfee, 72 Md. 32 . The real question, therefore, presented by this appeal is ⁷⁴ whether the demurrer to the first amended declaration was properly sustained. We think there was no error in sustaining the demurrer.

The cause of