Arthur & Boyle v. Morrow Bros.

• Decision Date: 28 June 1917
• Docket Number: 51.
• Parties: ARTHUR & BOYLE v. MORROW BROS.
• Court: Maryland Court of Appeals

101 A. 777

131 Md. 59

ARTHUR & BOYLE v. MORROW BROS.

No. 51.

Court of Appeals of Maryland

June 28, 1917

Appeal from Superior Court of Baltimore City; Robert F. Stanton Judge.

Suit by Arthur & Boyle, for the use of Fielder C. Slingluff and another, trustees, against James G. Parlett. On the judgment for plaintiffs, an attachment was issued against Morrow Bros., garnishees. From the judgment against the garnishees plaintiffs appeal. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Albert R. Stuart and Stuart S. Janney, both of Baltimore (Ritchie & Janney, A. Dana Hodgon, and Fielder C. Slingluff, all of Baltimore, on the brief), for appellants.

Carville D. Benson and John D. Nock, both of Baltimore (Benson & Karr of Baltimore, on the brief), for appellees.

BOYD C.J.

The appellees were the general contractors for the State Normal School building near Towson, and made in writing a subcontract with James G. Parlett to do certain work in connection with its construction. The contract is not in the record, but a memorandum of agreement filed in the case shows that it was for grading and landscaping. Parlett made a subcontract with Carozza Bros. & Co., who in turn entered into a subcontract with Arthur & Boyle, the appellants.

While that work was going on, Charles Morrow, one of the appellees, called Frank J. Boyle, one of the appellants, to where he and Parlett were standing, and asked him if he would make some tunnels which were to be constructed under the building, and he replied that he would if he got his price, and that he could start the next morning. After some conversation about the price, Morrow turned to Parlett and said:

"'Parlett, get them in right away,' and also said to me, 'You had better get your shovel up there and get to work on them and get them out, as we can't start this building until these tunnels are taken out.' Q. And he said to Mr. Parlett, 'You get them out right away'? A. Yes."

That is substantially all in the record in reference to the contract for the tunnels, but it is corroborated by Parlett.

The appellants did the work, and received a payment of $1,890 on account of it. Frank J. Boyle testified that the amount was paid to him by Parlett, who received the money from Morrow Bros., at their office, in his presence, and turned it over to him. Later the appellants sued the appellees for the balance they claimed to be due on account of the work on the tunnels, but the case was decided against them. Afterwards they sued Parlett and recovered a judgment against him for $4,409.05, with interest and costs. On that judgment an attachment was issued, and laid in the hands of Morrow Bros. They first filed a plea of nulla bona, but subsequently filed an additional plea in which they admitted having $250 in hand due Parlett, but alleged that they had no other goods, chattels, or credits of Parlett in their hands. The $250 was for the balance due on the contract for grading and landscaping. The trial in this case resulted in the appellants obtaining a verdict for only $250 against Morrow Bros., the garnishees, and they appealed from the judgment thereon.

There are only two bills of exception in the record, the first being to the admission of an "agreement and release," a "memorandum of agreement," and a receipt which were offered by the garnishees, and the second presents the rulings on the prayers. The plaintiffs offered five prayers, all of which were rejected, and the garnishees offered three, the second of which was granted, and the others rejected. We do not find in the record a copy of the judgment on which the attachment was issued, but the evidence of Mr. Boyle shows that they recovered judgment for $4,409.05, with interest from May 9, 1916, and apparently that was the date of the judgment. Nor is there anything to show when the suit against Parlett was instituted. The appellees rely on the agreement and release referred to, while the theory of the appellants is that Morrow Bros. owe Parlett a balance for the work on the tunnels, which they claim is the amount of the judgment they recovered against Parlett, and (1) that Parlett never did release this claim, and (2) that, even if he did, the release was without consideration, void and of no effect as to them, by reason of the British statute (15 Elizabeth, c. 5) known as the statute against fraudulent conveyances, in force in this state.

1. We find no error in admitting the papers referred to, notwithstanding our conclusion to be hereafter stated as to the effect of the release. The memorandum of agreement was dated March 16, 1916, and was executed by Morrow Bros., parties of the first part, James G. Parlett, party of the second part, and Carozza Bros. & Co., parties of the third part, the individual members of the two firms being also named. Its recitals are as follows:

"Whereas, the parties of the first part entered into a contract with the party of the second part for the grading and landscaping [italics ours] at the Maryland State Normal School, and the parties of the third part claim to have an assignment of said contract from the party of the second part; and whereas, a dispute has arisen in regard to the state of accounts between them, and the parties hereto have arrived at a compromise settlement of their differences: Wherefore, now this agreement witnesseth: That in consideration of the sum of one ($1.00) dollar by each of the parties hereto to the other paid, and in further consideration of certain mutual concessions by the parties hereto, it is agreed by the parties hereto and each of them that the total amount due by the parties of the first part in connection with and as a result of the matters and things hereinbefore referred to [italics ours] is eleven thousand five hundred dollars ($11,500), and no more."

On the same day what is called an "agreement and release" was executed by Parlett, party of the first part, and the Carozza Bros. & Co., parties of the second part, to the Morrow Bros., parties of the third part, the individual members of the firms being also named. It recites:

That, "whereas, certain differences and disputes have arisen between *** [naming the parties] regarding certain contracts entered into by the parties of the first and third parts regarding certain work to be done at and on the Maryland State Normal Schoo, for the erection of which school the parties of the third part were the general contractors, and whereas said differences and disputes have been adjusted to the satisfaction of the parties hereto," and that for and in consideration of the sum of $10,500 in hand paid to the parties of the first and second parts by the parties of the third part, the receipt of which is acknowledged, and the further payment of $1,000 when the state of Maryland makes final payment to Morrow Bros., and of other good and valuable considerations, Parlett and Carozza Bros. & Co. and each of them, remise, release, and forever discharge Morrow Bros. "from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, covenants, contracts, agreements, promises, damages, claims, and demands whatsoever in law or in equity which against the said William H. Morrow and Charles A. Morrow, or either of them, they ever had, now have, or which their respective heirs, personal representatives, or assigns hereafter can, shall, or may have, for, upon, or by reason of any manner or cause or thing whatsoever from the beginning of the world to the day of the date of these presents; the said parties of the first and second parts, and each of them, hereby declaring themselves fully paid and satisfied.

"And the said parties of the first and second parts do hereby covenant and warrant that any and all claims of any other subcontractors or other persons for labor and material done or furnished in, about, or in connection with the construction of the State Normal School in Baltimore county, or in or about the site of said State Normal School building, are paid in full, and that they and each of them will assume and pay any and all such claims as may arise or be presented."

The receipt referred to is as follows:

"Baltimore, 3/16/1916.

Received of Morrow Bros. two thousand dollars in full settlement of Normal School contract, except the sum of $1,000, which is to be paid when work is finally completed and accepted, to be paid as follows: Parlett, $250.00; Carozza, $750.00."

That is signed by Parlett and Carozza Bros. It would be difficult to use more words in a release than in the one above set out but there are some significant facts which cannot be overlooked. In the first place, it would have been so easy to mention the contract for tunneling if that was intended. ...