Baer v. Robbins
| Decision Date | 11 January 1912 |
| Citation | 83 A. 341,117 Md. 213 |
| Parties | BAER et al. v. ROBBINS. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; John J. Doblen, Judge.
Action by Alexander G. Robbins against Lewis Baer and others partners as Lewis Baer & Company. Judgment for plaintiff, and defendants appeal. Affirmed.
Argued before BOYD, C.J., and PEARCE, BURKE, THOMAS, PATTISON URNER, and STOCKBRIDGE, JJ
Myer Rosenbush, for appellants. Robert W. Mobray, for appellee.
In the trial of this case in the Baltimore city court a verdict was rendered in favor of the plaintiff for the sum of $90. The suit being ex contractu, and the amount of the verdict being below the jurisdiction of the court, a judgment of non pros and for the defendants for costs was entered. From this judgment the defendant has appealed. A motion to dismiss the appeal has been made upon the grounds: First, that the judgment is not final; and, secondly, that no appeal can be taken from a judgment by the party in whose favor it was rendered.
The suit was upon the common counts in assumpsit and was brought, according to the bill of particulars, to recover a balance of $158 claimed to be due from the defendants to the plaintiff on account of salary. In addition to the general issue pleas, the defendants filed a plea of set-off, which averred that they employed the plaintiff as their agent to purchase furs during a specified period for a stipulated compensation of $700, out of which he was to pay his own expenses, and that the furs purchased by the plaintiff for the defendants were to be paid for with checks drawn by him as agent against a certain bank account opened by the defendants for that purpose, and that under their agreement the plaintiff was not at liberty to withdraw any of the designated funds in payment of his compensation, but that he made such withdrawals on his own account, contrary to the agreement, and that the total purchases made by the plaintiff for the defendants, together with the total amount paid him by them, and the amounts drawn by him from the deposited funds for his own account, aggregated the sum of $142.81 in excess of the amount of the value of the furs purchased by the plaintiff for the defendants and the amount of the compensation he Was to receive for that service, and that the plaintiff was therefore indebted to the defendants to the amount of the excess stated, for which they claimed judgment.
To this plea the plaintiff replied, in substance, that according to his agreement with the defendants he was to receive $700 as his compensation, and was also to be paid his expenses, and that he was permitted under the agreement to withdraw from the designated bank account funds to be applied to his expenses and compensation, and that the plaintiff did not make any withdrawals in excess of the amount he was entitled to receive, and that there was nothing due and owing from the plaintiff to the defendants for which they were entitled to claim a set-off or judgment.
The primary issue upon which the case proceeded to trial under the pleadings mentioned was whether the plaintiff was to be reimbursed by the defendants for the expenses incurred by him in performing the duties of his agency. According to the evidence on both sides, the defendants were indebted to the plaintiff if he was entitled to have his expenses paid, and the plaintiff was indebted to the defendants if he was to receive under the agreement nothing more than the stipulated compensation of $700. The verdict for $90 in favor of the plaintiff was a finding against the defendants' contention, and the judgment entered was conclusive as to their right to recover in this suit the amount claimed in the plea of set-off.
Where issue is joined upon such a plea, it is provided by statute that: "Judgment for the excess of the one claim over the other, as each is proved, with costs of suit, shall be given for the plaintiff or the defendant, according as such excess is found in favor of the one or the other of these parties, if such excess be sufficient to support a judgment in the court where the cause is tried according to its established jurisdiction; otherwise the finding of such excess to be due shall be sufficient prima facie evidence of the fact of indebtedness for such excess, as upon an award of arbitrators in a suit in a court having jurisdiction to try and determine the same." Code, art. 75, §§ 12, 13. It is further provided that: "Wherever, by reason of the verdict of a jury being below the jurisdiction of the court in which the same is rendered, a judgment of non pros. is entered, the record of such judgment shall be a bar to any action founded upon the same cause of action in that or any court, the limit of whose jurisdiction shall be greater than the amount of such verdict; but the amount of such verdict, less such cost as may be adjudged against the plaintiff, shall be a debt from the defendant to the plaintiff, recoverable in any court that may have jurisdiction to that amount, or before a justice of the peace, as the case may be; and a short copy of the verdict and judgment, with the legally taxed bill of costs, shall be conclusive evidence of the balance so recoverable." Code, art. 26, § 17.
In view of these statutory provisions, it is clear that, so far as the present suit is concerned, the judgment from which the pending appeal has been taken is a finality. It has been held that, by force of the section last quoted, such a judgment as the one here in question conclusively establishes the amount of the debt. Berkley v. Wilson, 87 Md. 223, 39 A. 502. It is therefore a proper subject of appeal unless the defendants are precluded from such action in this case by reason of the judgment having been rendered in their favor.
The filing of the plea of set-off placed the defendants in the position of plaintiffs with respect to the claim upon which the plea relies. Such a plea is "in form substantially equivalent to a declaration in a cross-suit by the defendant against the plaintiff," and in his replication the plaintiff pleads precisely as he would to a declaration. 2 Poe's Pleading & Practice, § 825. If the defendants in this suit had established their contention to the satisfaction of the jury, they would have recovered a verdict and judgment for the amount of the claim stated in their plea. The judgment actually rendered, though in their favor did not accord them the measure of recovery to which their plea of set-off was directed. While it is the general rule that an appeal cannot be taken from a judgment by a party in whose favor it was rendered (Coates v. Mackey, 56 Md. 420), yet an...
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