Banks v. MeCosker

CourtCourt of Appeals of Maryland
Citation82 Md. 518,34 A. 539
PartiesBANKS et ux. v. MeCOSKER et al.
Decision Date25 March 1896

Appeal from circuit court, Prince George's county.

Action by David McCosker and George J. Molloy, trading as McOosker & Molloy, against John T. C. Banks and Catherine Banks, his wife, to recover on a promissory note given by defendants to P. O'Brien, and by him indorsed to plaintiffs. There was Judgment for plaintiffs, and defendants appealed. Reversed.

Argued before BRYAN, Acting C. J., and McSHERRY, FOWLER, BRISCOE, and ROBERTS, JJ.

F. Snowden Hill, for appellants.

R. Ford Combs, for appellees.

ROBERTS, J. This action was brought in the circuit court for Prince George's county by the plaintiffs, now appellees, to recover from the defendants, now appellants, the amount of a promissory note for the sum of $125, dated the 8th of May 1894, which the appellant had, for value received, drawn payable four months after date to the order of P. O'Brien. Before the maturity of the note the said O'Brien, for a valuable consideration, indorsed and delivered the same to the plaintiffs. The appellants pleaded in their defense—First, the nonexistence of the alleged partnership; second, non assumpsit; third, that the alleged promissory note was procured by the fraud of the payee in said note; fourth, that the said note was procured by the fraud of the said payee, who was agent of the appellees. After filing said four pleas, the appellants filed two additional pleas, setting up the defense that the note sued upon had been obtained by O'Brien, the payee in said note, in the course of an illegal sale of goods, in that he was engaged in selling without having previously obtained a license for that purpose. The fourth, sixth, seventh, eighth, and ninth pleas were demurred to. In the body of the record, and among the docket entries, is found this printed statement: "1895, Mch. 4th. Pleas fd. 1895, Apl. 3. Additional pleas fd. demurrer to 4 and 6 pleas. General issue to rest of pleas. Joinder on demurrer and replication. Demurrer sustained. Judgment on demurrer submitted to the court" The record, in its present form, is scarcely intelligible. It nowhere appears what disposition was made of the demurrer to the seventh, eighth, and ninth pleas, nor is there to be found in any part of the record a sixth or a seventh plea, yet the record says they were demurred to. This record is too imperfectly and carelessly gotten up to justify passing it by without comment. If a case is of sufficient importance to be brought here, it is the duty of those who have it in charge to see that the record is properly made up, and that it plainly and clearly presents the questions to be decided it certainly is no part of the duty of this court to indulge in speculation as to the meaning of records. Such a cause could only be productive of very unsatisfactory results. It will not be necessary to make further reference to the sixth and seventh pleas mentioned in the record as having been demurred to, for the reason that they form no part of the record, and are not to be found therein. The demurrer to the fourth plea was rightly sustained. It omits the material allegation that the plaintiffs took said note with knowledge of said fraud. But the court, in sustaining the demurrer to the fourth plea, did not restrict the appellants' right of inquiring into the manner in which, the note had been obtained. This he clearly could have done under the issue joined under the general issue plea filed. We are not entirely satisfied from the record that any demurrer to the eighth and ninth pleas was filed, but, as the question has been fully discussed at the hearing in this court, and is of importance, we will dispose of it.

The question, in its present form, has never before been considered or passed upon by this court. The facts material to the question are that O'Brien, the payee in the note sued upon, was engaged in peddling goods in said county without having previously obtained a license authorizing him to do so, and it is alleged that without having a license he sold certain goods to the appellants. It is claimed by the appellants that such a contract is illegal, and cannot be enforced. There can be no kind of doubt about the fact that there is great diversity of dicta and decisions on this subject. But there are some general principles, which now, through nearly all of the decisions, English and American, and in great measure, declare the law to be in accordance with the views herein expressed. As, for instance, when the question is "whether a contract has been prohibited by statute, it is material, in construing the statute, to ascertain whether the legislature had in view solely the security and collection of the revenue, or had in view, in whole or in part, the protection of the public from fraud in contracts, or the promotion of some object of public policy. In the former case the inference is that the statute was not intended to prohibit contracts; in the latter, that it was." And again, in seeking for the legislative intent in the passage of the law: "It is material also to inquire whether the penalty is imposed once for all on the offense of failing to comply with the requirements of the statute, or whether it is a recurring penalty, repeated as often as the offending party may have dealings. In the latter case the statute is intended to prevent the dealing, to prohibit the contract, and the contract is therefore void; but in the former case such is not the intention, and the contract will be enforced." Benj. Sales, § 25. The provisions of the Code now under consideration are found in article 56, §§ 27-30, under the title of "Licenses," subtitle "Hawkers and Pedlars." Section 27 reads as follows: "No hawkers or pedlars, shall buy for sale out of the state, or buy to trade, or offer to trade, barter or sell within the state any goods wares or merchandize, until he shall have first taken out a license for that purpose." The other section of the law provides for the apprehension and conviction of any one engaged in selling without a license, and the imposition of a fine for any one violating the law. When the law declares the consequence of its violation, the contract can in no sense be regarded as illegal unless the law itself, either by its manifest intent or in express terms, so declares it. The provisions of the Code referred to neither directly nor indirectly refer to any consequences save the payment of a fine for a violation of the law, and the failure to pay such...

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37 cases
  • Farmers' & Merchants' Nat. Bank of Cambridge v. Harper
    • United States
    • Court of Appeals of Maryland
    • 29 Junio 1926
    ...party or parties." This section has been construed by our predecessors in a number of cases. In the case of Banks v. McCosker, 82 Md. 518, 34 A. 539, 51 Am. St. Rep. 478. Judge Roberts, after quoting subsection 108, "When the note sued on was filed in this cause it had the signature of the ......
  • Allied Vending, Inc. v. City of Bowie
    • United States
    • Court of Appeals of Maryland
    • 1 Septiembre 1992
    ...... In Banks v. McCosker, 82 Md. 518, 34 A. 539 (1896), an unlicensed peddler had taken the defendant's promissory note in consideration of goods sold. That note ......
  • Farmers' & Merchants' Nat. Bank of Cambridge v. Harper
    • United States
    • Court of Appeals of Maryland
    • 29 Junio 1926
    ...... . .          This. section has been construed by our predecessors in a number of. cases. In the case of Banks v. McCosker, 82 Md. 518,. 34 A. 539, 51 Am. St. Rep. 478, Judge Roberts, after quoting. subsection 108, said:. . . "When the note sued on was ......
  • Thomas v. Capital Medical Management
    • United States
    • Court of Special Appeals of Maryland
    • 7 Diciembre 2009
    ....... .          State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D.Ill.2001). See also Banks v. McCosker, 82 Md. 518, 525, 34 A. 539 (1896) ("We think it very clear that the legal effect and meaning of the statute is that the next ......
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