Washington, Baltimore & Annapolis Electric Railroad v. Moss

Briscoe, J., delivered the opinion of the Court. Thigi case is presented upon a second appeal. The first appeal is reported in 127 Md. 12 . The suit in that case was brought for the breach of an alleged contract as set out in the ²⁰⁰ declaration filed in the case.

We held on the former appeal, that the alleged contract was unenforceable because of its indefiniteness .and vagueness, in the essentials, stated, in the opinion, and being invalid, it would not support an action by the plaintiff for a recovery. It was also said in the course of the opinion, that if the facts are as testified to by the appellee and his witnesses, the plaintiff was not without a remedy, because independently of the alleged contract, the plaintiff “has a right of recovery for the services rendered for the benefit of the appellant, the W. B. and A. Electric R. R. in securing the lease from his aunt for it, as well as compensation for the surrender of his lease to the premises, if he had a lease that had a value.” The judgment of the Court below, on the former appeal, was reversed and the cause was remanded in order to allow the appellee an opportunity to amend his declaration so as to conform to the views expressed, or to dismiss that action and institute a, new suit for the recovery of such compensation “as shall be found to be due him for what he did towards the securing of the lease and the surrender of his own lease and possession, whichever he shall prefer.” The case was remanded to the Circuit Court for Howard County, and the mandate filed in that Court on the 21st of January, 1916. On the 6th of March, 1916, an amended declaration was filed containing seven counts. The first and third being the usual common counts in assumpsit, the second, “And for work done and services, rendered by the plaintiff for the bene>fit of the defendant,” the fourth, fifth, sixth and seventh counts are special counts.

The fourth count alleges that the defendant, desiring to obtain the property .at College avenue and Bladen street, on or about F'ebruary 7th, 1913, employed the plaintiff to negotiate for a purchase or lease of the same, and that in pursuance of said employment by the defendant, the plaintiff began negotiations with the owner of said property, which negoti ²⁰¹ ations resulted in a lease to Eobert Moss on the 25th day of February, 1913, for a term of ten years, with an option to renew same for another term of ten years, which lease was assigned to the defendant on the 27th day of March, 1913, for which services in negotiating the lease as aforesaid for the defendant, the plaintiff has received no compensation. The fifth count avers that on February 25th, 1913, the date of the lease to Eobert Moss, the plaintiff was, and for a number of years prior thereto had been, in possession of the premises asa tenant, and at the request of the defendant and with full expectation and promise of pay therefor surrendered his tenancy and gave up his possession, and the defendant has not paid him therefor. The sixth count states that on February 25th, 1913, the plaintiff was and had been for a number" of years prior thereto employed in conducting a grocery store on a portion of the premises in question, and at the request of the defendant, and with full expectation of compensation therefor, closed out his business and gave up his business, but has not been paid any compensation by the defendant. The seventh count alleges that the plaintiff on February 25 th, 1913, was and for a number of years- prior thereto had been conducting a boarding house on part of the premises, and at the request of the defendant and with full expectation of payment therefor, ceased to conduct said boarding house, and the defendant has not compensated him therefor.

The defendant demurred to each and every count of the declaration but the demurrer was overruled. The plaintiff, upon demand, filed the following as the bill of particulars of his claim against the defendant for services rendered by him from January 1st, 1913, to May 21st, 1913, as follows: For services rendered in originating and suggesting the advisability, advantages and necessity of the location of the defendant and its interests on the corner of Bladen St. ²⁰² and College Ave. in the City of Annapolis, Maryland..........................$5,000.00 For services rendered in securing lease on property located on the west corner of College Ave. and Bladen St. in the City of Annapolis, Md......................... 5,000.00 For services rendered in obtaining possession of said property for tbe defendant: (1) In surrender of tenancy............. 4,000.00 (2) In closing out business conducted in storehouse and surrender' of perquisites...................... 4,000.00' (3) In surrender of business conducted in dwelling........................ 1,000.00 (4) In planning and construction of tbe remodeling of improvements on said property........................ 1,000.00 $20,000.00 To tbe declaration the defendant filed four pleas: first and' second, tbat tbe cause of action did not accrue witbin three-years from the suit, or within three years prior to the 6 th of March, 1916, the date of the amended declaration. The third' and fourth pleas were the usual general issue pleas of never promised and not indebted as alleged. Tbe plaintiff’s demurrer to the second plea was sustained and the case was tried upon a traverse to the first "plea and issue joined on the-other pleas.

There were seventy-one exceptions reserved to the rulings-of the 'Court, in the course of the trial. Seventy of these relató to the admissibility of testimony and the1 other to the-ruling of the 'Court upon the prayers. The plaintiff offered' one prayer and this was granted. The Court granted the-defendant’s eighteenth prayer, but rejected its remaining-twenty-nine prayers; and tbe rulings, in overruling tbe de^ fendant’si special exception to the plaintiff’s prayer and the refusal to grant the defendant’s twenty-nine prayers and' the- ²⁰³ granting of the plaintiff’s prayer form the basis of the seventy-first bill of exceptions.

It is apparent from the record, and an examination of the declaration and the various items and claims set out in the bill of particulars, that the plaintiff sought in this action to recover for matters and undertakings embraced in the contract declared upon in the original declaration and which we held on the former appeal to be invalid and not alone upon a quantum- meruit for alleged services rendered in securing the lease from his aunt and the surrender of his own lease. W. B. & A. R. R. Co. v. Moss, 127 Md. 22 . There was error in granting the plaintiff’s first prayer, because apart from allowing the plaintiff to recover under the evidence for services, rendered in securing the lease and for the surrender of his own lease, it instructed the jury that the plaintiff could recover for separate and distinct services, in closing out of his retail grocery business and the surrender of his boarding house business, conducted on the premise®, either by previous employment or the acceptance of the plaintiff’s agency and the adoption of his acts. This prayer was not only clearly erroneous under our former decision in 127 Md. 22 , but is also, open to the objection that it directed the jury to allow interest “from such time as tire jury may find from the evidence such services were completed to the date of their verdict.” It is the settled practice in thisi State, except, in those cases where interest is allowable as of right, to- refer the question of interest to the jury to be allowed in its discretion.

Newson v. Douglass, 7 H. & J. 117 ; Baltimore City Pass. Rwy. Co. v. Sewell, 37 Md. 413 ; Curtis v. Gibney, 59 Md. 131 . The defendant’s exception to the rejection of its first, second and third prayers are waived and need not be considered.

The defendant’s, fourth prayer presented the question of limitations, and the Oourt was asked to instruct the jury, that under the pleadings the plaintiff could not recover for any services alleged to have been rendered by the defendant ²⁰⁴ and which, were completed more than three years before the filing of the amended declaration, the amended declaration, being filed on March 6th, 1916. The same question was raised by the ruling of the Court, in sustaining the plaintiff’s demurrer to the defendant’s second plea. The question as here presented upon the evidence set out in the record, is not free from difficulty. The suit is in assumpsit upon a quantum meruit for services rendered in obtaining the lease, and surrendering the plaintiff’s own leasa Under all the authorities, the statute of limitations would run against any services rendered and completed by the defendant more than three years prior to the filing of the amended declaration.

In Spencer v. B. & O. R. R. Co., 126 Md. 200 , this Court said: “The rule is well settled in this State; and in other jurisdictions, that where an amended declaration introduces a new or different cause of action and makes a different claim and demand, it is equivalent to a new suit, upon a new cause of action, and opens the case to the bar of the statute of limitations and the plea is proper and available, and this rule applies although the two causes- of action arise out of the same transaction.” Hamilton v. Thirston, 94 Md. 253 ; Di Giorgio Co. v. Stock, 116 Md. 210 ; Johnston v. District, 1 Mackey, D. C. 428; Union Pacific Ry. v. Wyler, 158 U. S. 285 . In Young v. Mackall, 3 Md. Ch. 399 , it is said, as soon as the cause of action accrues, whether it be a trust or not, if it be a fit subject for a suit at law as. well as in equity, the statute of limitations begins to run. Green v. Johnson, 3 G. & J. 390 ; Hahn v. Claybrook, ante, page 179. The general rule seems also settled that in the computation of the statutory period, in cases where there is an undertalcing which requires a continuation of services, or the party’s right depends upon the happening of an event in the future, the statute begins to run only from the time the serv ²⁰⁵ ices can be completed or from the time the event happens.

Angell on Limitations, sec. 120; Wood on Limitations, 325-330. In 25 Cyc. 1065 and 1066, it is said: “ ‘The accrual of the cause of action’ means the right to institute and maintain a suit; and whenever one person may sue another a cause of action has accrued and the statute begins to run. So whether at law or in equity the cause of action arises when and only when the aggrieved party ‘has the right to apply to the proper tribunal for relief.’ The statute does not attach to a claim for which there is no right of action, and does not run against a right for which there is no corresponding remedy or for which judgment can not be obtained. The true test therefore to- determine whether a cause of action has accrued is to ascertain the time when plaintiff could have first have maintained his action to a successful result.

The fact that he might have brought a premature or groundless action is immaterial.” In the case at bar, there is a manifest conflict in the evidence as to- when the services of the defendant were completed for which the suit was brought in this case-. The amended declaration, it appears, was filed on the 6th of March, 1916. In the fourth count of the declaration, it is averred, that the plaintiff on or about the 7th of February, 1913, was employed by the defendant to negotiate for the purchase o-r lease o-f certain property in the City of Annapolis and the negotiations resulted in a lease of the property to- Robert