Wilmer v. Placide

Pattison, J., delivered the opinion of the Court. The appeal in this ease is from an order of the Circuit Court of Baltimore City finally ratifying and confirming, an auditor’s report and account made under an order or decree of said Court-previously passed on the 27th day of October, 3911. The order directing the accounting, in which the auditor was specifically directed as to how the account should be stated, was before this Court for review at the April Term, 1912 (Wihner v. Flacide), and was by it affirmed. The record contains twenty-five exceptions to the ratification of the auditor’s report.

Some of these exceptions are as follows: First. To the exclusion of interest on the mortgage debt after the assignment of the same to the defendant. Second. - To the exclusion of amounts said to have been paid by the defendant as interest on the mortgage debt before the assignment to him. Third.

To the exclusion of commissions to the defendant on money collected and disbursed by him for and on behalf of the plaintiff. Fourth. To the filing of the account after the day named in the decree for the filing of it. ⁵¹ Fifth. .To certain items of the account to which the plea of limitations had been filed by the defendant with the auditor. Sixth.

To the failure of the auditor to allow to the defendant certain credits to which he claims to be entitled in his account with the plaintiff for money of hers paid to him from the estate of Jennings Placide. Seventh. To the charges against the defendant for taxes and water rents on property known as 1001 E. Pratt Street, and to the allowance of costs to the plaintiff that were paid by the defendant to the auditor, amounting to $144.80. In respect tó the first and second exceptions the Court below in its order or decree of October 27th, 1911, which as we have said was affirmed by this Court, directed the auditor in stating his account to charge the plaintiff only witi. the amount owing on the principal of said mortgage, to wit, the sum of $3,959.29, and cost of recording, $4.25, but that she should not be charged with any interest thereon.

The reason for the non-allowance of interest is fully stated or given in the opinion of this Court in the former case in the affirmance of the order of the Court below. The commissions claimed by the defendant are upon money collected and disbursed by him belonging to the plaintiff, as shown by the exhibits or books C 1 to C 9, inclusive. This money so collected was for the rent of properties belonging to the plaintiff, and in these exhibits or statements he charged himself with the money so collected and credited himself with the disbursements made by him for repairs and expenses in connection therewith. In these statements he also credited himself with and retained certain amounts therein shown for the board'of plaintiff.

The Court below in its decree, affirmed by this Court, in respect to these statements and exhibits, directed that the auditor should credit the plaintiff with the sum shown by said books to have been charged against her as board, and in stating his account from the credits and debits in said books he should be confined to the entries therein. ⁵² Iii these statements, as we have said, made ont by the defendant himself, no credits were given him for commissions, nor do we find by careful examination of the record where any commissions were ever asked for or claimed by the defendant prior to the passage of the decree appealed from in the former case, and in which no commissions were allowed. And in his letter of November 4th, 1910, .to the plaintiff, he-writes: “Herewith I hand you your pass books of account (said exhibits or statements) from Ho. 1 to 9, inclusive, covering your property collections and personal' accounts with myself to November 2nd, 1910. You will notice I have neither charged you the usual commissions for collections and services nor for payments and disbursements.” Commissions not being asked for, but in fact waived, as disclosed by this letter, they were not considered or passed upon by the Court below, and it was not until the case reached this Court that anything was said as to the commissions; it was then found in the brief of the appellant. As we have ■said, no commissions were to be allowed by the order of the Court of October 27th, 1911, and therefore none were allowed by the auditor in stating his account.

As to the fourth exception, as we have designated it, the appellant complains of the fact that the account was not filed upon the day on which the order directed it to be filed. It is true it was not, but it is disclosed by the order of the Court, finally ratifying the account, that the time in which it should have been filed, as stated in the first order, had been extended by the Court. We discover no force in this exception. As to the fifth exception stated above, the plaintiff in her bill charged that the defendant was in control of certain of her properties and had collected rents therefor since about the year 3891, and had also during that time collected other money, for which he had not accounted to her, athough “he had handed her partial and pretended statements of her ⁵³ accounts, which she alleged, were false and incomplete.” In his answer thereto the defendant admitted having collected said money during this long period of time, but alleged that he had paid and accounted to her for all such money.

The Act of Limitations was not pleaded and relied upon in his answer in bar to her right to recover any of the rents and profits or other money belonging to her therein admitted to have been collected or received by him. Upon the filing of the answer and replication thereto, these books or statements were filed and much testimony was offered by the defendant in support of the credits therein found, by which he contended that the indebtedness to the plaintiff had been paid and satisfied. In adtition to these statements the defendant filed his Exhibit ETo. 10, in which he charges himself with'amounts, that were distributed from the estate of Jennings Placide to the plaintiff and collected by the defendant. In this last exhibit or statement the defendant credits himself with certain items or amounts said to have been paid out of this fund to the plaintiff and offered evidence to sustain said credits, but the Statute of Limitations was not relied upon, nor was it even suggested as a bar to the plaintiff’s right to recover the balance of said money held by him, although the dates upon which the payments were made to him, January 11th, 1898, and ETovember 9th, 1899, are fully set out in the said statement rendered by him; and not until after the credits claimed by him in these statements had been considered and passed upon by the Court below, and not until after the Court by its order of October 27th, 1911, had directed the manner in which the account should be stated, in which the items of collections therein found were to be charged against the defendant, was any attempt made by the defendant to avail himself of the Acts of Limitations as to any of the items of charges against the defendant contained in said statements.

The defence of limitations is lost to the defendant if he, before pleading or relying upon it, does some act or stands by ⁵⁴ and suffers some act to be done which, necessarily implies a waiver of such defence on his part, as for instance, he can not first contest such claim on its merits and then after-wards plead limitations to it (McMachen v. Chase, 1 Bland, 85 , note c, and 2 Bland, 43 ) ; or where an original complainant presents his claim with his bill, and the defendant in his answer denies its existence, but does not plead limitations thereto, he can not after the case has been contested on the ground of the existence of the claim, rely upon the statute by way of exception to the audit which allows it. Brendel v. Strobel, 25 Md. 400 ; Hall v. Ridgely, 33 Md. 310 . Eollowing this rule, if the defendant could at any time have availed himself of this defence in this case, which we are not called upon here to determine, this right was waived by him by reason of his acts above mentioned. The Court in its order of October 27th, 1911, directed that “The said Wilmer shall also be allowed such part of the sum of $1,055.30 referred to in his ledger named in evidence, for the payment of which he’ can show proper authority from Miss Placide, with interest.” The defendant claims that he has accounted for or paid to the plaintiff this entire sum, less thirty cents, at the times and in the amounts following: $400, Nov. 6, 1899; $165, Nov. 16, 1899; $225, Nov. 24, 1899; $50, Dee. 19, 1899; $65, Apr. 10, 1900; $125, Oct. 19, 1900; and $25, Dec. 11, 1900.

Testimony was heard by the auditor as to these alleged payments. The defendant in his testimony produced the ledger of the banking firm of E. M. Wilmer, trading as E. M. Wilmer and Company. He also produced a counter day book from which the entries therein were transcribed to the ledger. The entries in both of these books were made by Wilmer and were in his handwriting.

The ledger contained an account, designated by him as the “estate account,” wherein, as we understand from the evidence, the plaintiff was credited with the amounts to which she was entitled from the estate of her. brother Jennings Placide and which were ⁵⁵ paid over to the defendant, and was charged in said account with the payments said to have been made by the defendant to her on this fund. Among these alleged payments to her were the payments mentioned above. The admission of these books, the defendant’s ledger and counter day book, for the purpose of proving the alleged payments hy the defendant to the plaintiff of the amounts therein stated, was objected to by the plaintiff and exception was noted to the admission of them. The books, for such purpose, were not admissible.

As was said hy Judge Peauce in Gill v. Staylor, 93 Md. 453 : “It is of course clear, both upon principle and authority that entries made by a party himself charging another, are not admissible as evidence ■per se. Such entries stand upon a different footing from those made hy a clerk or other person in the ordinary course of business and contemporaneously