Allen v. Wilkinson
| Decision Date | 01 July 1968 |
| Docket Number | No. 271,271 |
| Citation | 250 Md. 395,243 A.2d 515 |
| Parties | Harry B. ALLEN et ux. v. Carl E. WILKINSON et al. |
| Court | Maryland Court of Appeals |
Harry B. Allen, (Leone S. Allen, in pro. per., on the brief), for appellants.
Peter F. O'Malley, Hillcrest Heights, (DeBlasis & Kahler, Hillcrest Heights, on the brief), for appellees.
Before HOMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.
This appeal is taken from the Circuit Court for Prince George's County, where Judge Parker sustained a demurrer to the appellants' amended declaration without leave to amend.
On July 27, 1964, the appellants, Mr. and Mrs. Allen purchased from the appellees a completed house located on Lot 12, Block 12, in a development known as Stan Haven Subdivision in Prince George's County. The appellants subsequently moved into the house, but approximately nineteen months later, on or about February 13, 1966, and on various occasions after that date, the basement became flooded, with resulting damage to the house and the personal property of the appellants. The Allens filed a declaration alleging damages in the amount of $1500. The appellees demurred to the declaration and the demurrer was sustained with leave to amend. A second declaration was filed by the plaintiffs purporting to sound in both contract and negligence, and to this the defendants filed a second demurrer, which was sustained. It is from the ruling sustaining this second demurrer, without leave to amend, that this appeal was taken.
The appellants first contend that the demurrer was insufficient under subsections b and c of Maryland Rule 345 in that it did not contain sufficient detail and that it is a general demurrer and also was addressed only to count one of the amended declaration. Subsection b states: 'A demurrer shall * * * state in detail the question of law or insufficiency of substance upon which the demurrer is founded.' And subsection c provides: 'A demurrer shall not be allowed for a mere informal statement of a cause of action or defense, provided such statement is sufficient in substance.' There is no distinctly delineated test by which the sufficiency of a demurrer can be adjudged and each case must rest on its individual merits. It is, however, contemplated that a demurrer will contain a reasonably understandable statement of the question of law or insufficiency of substance that it raises. In the case before us the first paragraph of the demurrer states: 'In sales of realty there are no implied warranties and the Doctrine of Caveat Emptor is in full force.' The demurrer further lists points and authorities in support of this proposition which were considered by the lower court as sufficient. We think that the trial judge was correct in so finding.
Each of the three cases cited by the appellees as authorities in support of their demurrer below sets out the proposition that there is no implied warranty in the sale of real property. Fegeas v. Sherrill, 218 Md. 472, 147 A.2d 223; Gilbert Const. Co. v. Gross, 212 Md. 402, 129 A.2d 518; Berger v. Burkoff, 200 Md. 561, 92 A.2d 376.
Subsection c of Rule 345 simply disallows a demurrer when the pleading is informal but is of sufficient substance to state a cause of action or defense.
The appellees concede the appellants' argument that a general demurrer must go to all counts of the declaration or be overruled, but maintained that their demurrer effectively disposes of both counts in the appellants' declaration. An examination of the...
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...a jury. The Builder's motion for a directed verdict, made at the end of the plaintiffs' case, was granted, relying on Allen v. Wilkinson, 250 Md. 395, 243 A.2d 515 (1968), 1 and the absence of proof of fraud or fiduciary relationship. The case continued as to GEICO, and the jury returned a ......
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