American Bonding Co. of Baltimore v. Ensey
| Decision Date | 16 February 1907 |
| Citation | 65 A. 921,105 Md. 211 |
| Parties | AMERICAN BONDING CO. OF BALTIMORE v. ENSEY. SAME v. CHANDLEE. |
| Court | Maryland Court of Appeals |
Appeals from Superior Court of Baltimore City; Henry Stockbridge Judge.
Separate actions by the American Bonding Company of Baltimore against Louisa Ensey, executrix of Lot Ensey, deceased, and by the same plaintiff against Alexander W. Chandlee, surviving partner of the firm of Charles H. Torsch Company. From judgments for defendants in both actions, plaintiff appeals. Reversed, and new trial awarded.
Argued before BRISCOE. BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.
William L. Rawis and William L. Marbury, for appellant.
John C Rose, for appellees.
The judgments from which these two appeals were taken were rendered in the superior court of Baltimore City upon the same cause of action. The original suit was brought against John S. Chandlee, Alexander W. Chandlee, and Lot Ensey surviving members of a copartnership trading as the "Charles H. Torsch Company"; H. P. Chandlee, one of the copartners, having died before the institution of the suit. Subsequently John S. Chandlee and Lot Ensey died, and by appropriate proceedings a separate suit was docketed against Lot Ensey, to which his executrix, Louisa Ensey, appeared, and became the party defendant therein. The original action continued against Alex. W. Chandlee, as sole surviving member of the partnership, and the two cases were tried together in the lower court.
The cause of action arose in this way: The Charles H. Torsch Company held a claim of $33.34 against Hoyt & Mitchell, a firm doing business at Washington, N. C., which claim had some time before April 14, 1900, been placed by F. G. Stilley, a salesman of the Charles H. Torsch Company, in the hands of Small & MacLean, attorneys at Washington, N. C., with instructions to proceed as they thought advisable. On May 1, 1900, they advised the Charles H. Torsch Company by letter that Stilley had done this, and that, under bankrupt proceedings instituted against Hoyt & Mitchell to set aside an alleged sale of part of their property to one L. R. Mayo, they had been adjudicated bankrupts, and that it was necessary the said Charles H. Torsch Company should prove their claim before May 8th in order to participate in the appointment of a trustee, and these attorneys requested that this proof be made and be sent to them, together with a fee of 10 per cent. upon the amount of the claim. This letter was replied to by Charles J. Cordrey, who then had charge of the sales and salesmen of the Charles H. Torsch Company, and who proved and sent the claim to Small & MacLean, together with the required fee, but did not inform them that Stilley had no authority with respect to the collection of claims. At the same time, the O.K. Stove & Range Company of Louisville, Ky., had a claim of $1,334 against Hoyt & Mitchell, which was in the hands of B.F. McLean, an attorney at Maxton, N. C., and the Mineralized Rubber Company of New York also had a claim against them of $165, which was in the hands of Small & MacLean as attorneys. It should be observed here that the McLean of Maxton was not also the MacLean of Small & MacLean; the first name of the former being indicated by the initials B. F., while the latter was Angus D., and the surnames being differently spelled, though pronounced alike.
The proceedings in bankruptcy, mentioned above, were instituted April 14, 1900, by the three creditors above named; the petition being signed for the Charles H. Torsen Company by "F.G. Stilley, Agent," for the O.K. Stove & Range Company by "W.J. Thompson, Agent," and for the Mineralized Rubber Company by "Angus D. MacLean, Agent and Attorney." Upon this petition an order was made by the United States District Court for the Eastern District of North Carolina on the same day, authorizing and requiring the marshal of said court "to seize and take possession of all the estate real and personal of said Hoyt and Mitchell, and to hold and keep the same safely, subject to the further order of the court." On the same day, also, a bond in the penalty of $5,000 was given in behalf of the three creditors above named, to Hoyt & Mitchell, with the American Bonding Company as surety, to indemnify Hoyt & Mitchell for such damages as they might sustain in event that such seizure should have been wrongfully made. This bond was executed for the O.K. Stove & Range Company by "W.J. Thompson, Agent," and for both the Mineralized Rubber Company and the Charles H. Torsch Company by "B.F. McLean," as attorney; it appearing in the deposition of B.F. McLean that he so signed in accordance with the request and authority of Small & MacLean, as B. F. McLean was to go to Raleigh to institute the proceedings.
Subsequently, B. F. McLean was again in Raleigh, when the United States marshal, H.C. Dockery, informed him that his authority to sign that bond was questioned, and that Mayo was claiming the stock of goods seized, and that unless he (Dockery) was properly assured of McLean's authority in the premises, and was furnished with a bond of indemnity to himself as respected the seizure of the property, he would go to the judge and ask an order releasing the property claimed by Mayo. He replied that "he would at once write the parties for proper authority, or rather a letter authorizing him to sign these bonds, and would ask them to date it back so as to cover both bonds; that he wrote these letters from the Yarborough House in Raleigh, and consequently had no copy of either of them"; but that he received in reply a letter from the Charles H. Torsch Company upon their letter head, as follows: Neilson Ramsey, who succeeded Charles J. Cordrey in the charge of the credits and salesmen of the Charles H. Torsch Company, says that this letter was written by Cordrey while with the company one year before his own connection with that company, though he says that he was not very familiar with his handwriting. Similar replies were received to this letter from Raleigh from the stove and range company, and from the rubber company, both dated back as requested to April 12, 1900; the former authorizing W.J. Thompson "to make any affidavits necessary, and to sign in our name any bond that may be required in the proceedings," and the latter authorizing B.F. McLean "to execute for us as our attorney any bonds that may be necessary to get an order to seize and hold the stock of goods, wares and merchandise of Hoyt & Mitchell of Washington, N. C., whom we are informed are bankrupts." It will be noticed that the language of the authority of the rubber company is the precise language of the authority of Charles H. Torsch Company, except that in the former the plural word "bonds" is used, and in the latter the word "bond" is used, and so also as to the words "affidavits" and "affidavit." This difference is not material in any aspect of the case, and is perhaps a typographical error in one of these letters; but the identity of language strongly indicates that they were prepared by B.F. McLean for the signatures of the parties, and thus reflects the purpose of the writer declared in his testimony "to cover both bonds." Indeed, the dating back to April 12th, whether actually written by McLean, or by the parties at his request, in itself indicates the purpose to cover the first bond, and the reference to both seizing and holding the property by strong implication points to the second bond demanded by the marshal, since for the purposes of those parties seizure would or might be futile unless the property were also held.
In pursuance of these letters, on June 16, 1900, B.F. McLean and Small & MacLean, as attorneys for these parties, made application to the American Bonding Company, of Baltimore, through its agent at Raleigh, for a bond of $8,000 for the protection of the marshal of the court by reason of the seizure and holding of said property, and signed in their behalf an agreement for the same, in which it was stipulated that they should indemnify the bonding company against all loss or damage which it might be put to in consequence of the execution of said bond; and, on the same day, the bond was executed to said Dockery, as marshal, to indemnify him from all harm "or actions that have been or may be brought against him by reason of the seizure and holding of said property." Mayo sued Dockery for the seizure of said property, and recovered judgment against him for $6,670, which Dockery succeeded in satisfying by payment of $5,019, and he then sued the bonding company upon said bond and recovered judgment against it for $4,619.17, which judgment the bonding company satisfied by payment of $4,715, and costs, aggregating $5,077. The O.K. Stove & Range Company and the rubber company settled with the bonding company their respective one-third of this amount, and the present suit was brought upon the agreement before mentioned to recover the one-third claimed to be due from the Charles H. Torsch Company.
After the institution of the suit by Mayo against Dockery, the latter informed the bonding company by letter of its pendency, and that he was defending the same to the best of his ability, and requested the bonding company, and the creditors upon whose application the bond was executed, to aid in defense of the suit, and notified them that, in event of a recovery by...
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