Barrier v. Marine Midland Trust Co. of Southern New York

• Decision Date: 08 December 1971
• Docket Number: No. 144,144
• Citation: 263 Md. 596,284 A.2d 418
• Parties: James D. BARRIER v. MARINE MIDLAND TRUST COMPANY OF SOUTHERN NEW YORK et al.
• Court: Maryland Court of Appeals

Page 596

263 Md. 596

284 A.2d 418

James D. BARRIER v. MARINE MIDLAND TRUST COMPANY OF SOUTHERN NEW YORK et al.

No. 144.

Court of Appeals of Maryland.

Dec. 8, 1971.

Morris Topf, Hyattsville (Stanbury & Topf, Hyattsville, on the brief), for appellant.

Theodore A. Miller, Rockville (Miller & Ehrlich, Rockville, on the brief), for appellee Marine Midland Trust Co. of Southern New York.

Submitted on brief by Stanley B. Frosh, Bethesda, for appellees State Nat. Bank and others.

Argued before HAMMOND, C. J., and BARNES, FINAN, SINGLEY and SMITH, JJ.

SMITH, Judge.

An alleged error on the part of Marine Midland Trust Company of Southern New York (Marine Midland), one of the appellees, produced this litigation and what one might suspect at times to have been slightly raised blood pressure on the part of certain of the parties and their counsel. We shall here reverse judgment entered in favor of defendant Marine Midland when its motion for summary judgment was granted.

It all began back in May of 1969 when appellant, James D. Barrier (Barrier), bought a new Pontiac automobile which he financed through Marine Midland. He moved to Maryland, taking up his residence in Montgomery County. Marine Midland believed him to be in default. Through State National Bank of Bethesda (State National) Barrier's car was repossessed, the repossession being described by Barrier as having taken place 'in the early dawn or predawn hours of May, 24, 1970.' Barrier filed suit against Marine Midland, State National, and two individuals. The declaration contained counts for trespass d. b. a., libel, and slander, claiming $5,000 for compensatory damages and $150,000 for punitive damages on each count.

A settlement agreement was reached by which the sum of $1,000 was to be paid to Barrier plus reimbursement to him of $100 of costs for a public apology by the banks to be published in a Washington area newspaper for a period of one week. ¹ Unfortunately, that did not dispose of the matter because, through what Barrier's counsel describes as 'inadvertency', Barrier's check for his October payment on the car was not honored by the bank on which it was drawn. Barrier did not get his settlement and Marine Midland declared the contract relative to the car in default, demanded the balance due, and demanded barrier's automobile which he does not wish to surrender.

At this point, the situation can best be understood by referring to certain dates and what transpired on those dates:

October 7-Barrier's October payment to Marine Midland was due.

October 15-Barrier's attorney responded to settlement proposals by advising that his client was prepared to settle on either of two bases, namely $1,000 plus public apology, with him designating the newspaper to print the apology, or $5,000 without a public apology.

October 19-Barrier's check dated October 5 for his October payment was dishonored the first time by his bank. ²

October 19-Counsel for Marine Midland accepted on behalf of his client the $1,000 plus public apology proposal. ³

October 22-Barrier's counsel forwarded release executed by his client and 'line of satisfaction' ('Potomacese' for an order dismissing the case as 'paid, settled, and satisfied').

October 29-Counsel for Marine Midland advised counsel for Barrier that he had written to Marine Midland for money and expected to be in a position to disburse about the middle of the following month.

November 2-October payment again dishonored by the bank.

November 7-Another payment due.

November 8-Date of check originally intended for November payment, but which would have been for October payment.

Week of November 8-Public apology printed in The Washington Post.

November 16-November 8 check cleared the bank.

November 25-Marine Midland's attorney advised Barrier's attorney that Barrier 'was in default for his October and November payments and told him that unless there was a satisfactory explanation Marine Midland was going to call the loan.' Barrier's attorney said that this came as a surprise to him, that he would speak to Barrier and get back to Marine Midland's attorney. He called back the same day, stated that there was an explanation, and asked that nothing be done for a week inasmuch as he was departing for a vacation. Marine Midland's attorney 'agreed to hold off.'

November 30-On or about this date Barrier received a notice from Marine Midland that his payment of November 7 was past due and the total amount due including 'any accrued late charges' was $151.90.

November 30-Barrier drew check to Marine Midland in the amount of $151.90 as per the notice. This check was received by Marine Midland but has never been deposited.

December 21-Counsel for Marine Midland wrote the attorney for Barrier as follows:

'I've researched and poked and looked. Your man, to my satisfaction, is in default.

'This is formal notice to confirm our earlier conversations that James D. Barrier is in default by virtue of the dishonor twice of the October 5 (sic), 1970 check, copy of which is enclosed, and the failure to pay the November payment on November 5 (sic), 1970.

'I told a check from Barrier dated November 30, 1970 in the amount of $151.90. I am informed that a payment dated in December has been received by the Bank that will not be presented per my instructions.

'You had earlier advised that Barrier would supply me evidence that Barrier had another account at his bank in the name of 'Landscape Servece' that belonged to him and in which were funds to cover the dishonored check of October 5, 1970. This Barrier has not done.

*602

                'The arithmetic is as follows:
                Account Balance:          $2,238.00
                Unearned Interest
                    Discount                 126.78
                                          ---------
                                          $2,111.22
                Total late fines due
                ($5.00 per late charge--
                  8 late payments):           40.00
                                          ---------
                    BALANCE               $2,152.22
                

'The book on the Pontiac is $2,100.00. If the car is in decent condition he can turn it over for re-sale and we'll settle any deficiency out of the money we hold and disburse the balance to you together with his undeposited November and December checks.

'Or, he can send us a certified check for $1,152.22 and we will add that to the $1,000.00 we have and call it square-the November and December checks to be returned.

'Please let us know promptly which way you want to go.'

Other correspondence followed that.

January 11-Barrier asked leave to amend his declaration by adding two additional counts, one in assumpsit against both banks in the amount of $1000 because of the failure to honor the previously mentioned settlement, and one for conspiracy against both banks demanding punitive damages of $10,000,000 and compensatory damages of $10,000 claiming, among other things, that they 'were geared to, and did, pounce upon the Plaintiff, James D. Barrier, to avenge the public apology they had previously extended to him but did not honestly mean.'

February 4-Leave to amend was granted.

February 11-Plea on equitable grounds filed on behalf of Marine Midland setting forth, among other things, the settlement, the difficulty with the October 7 payment, and that Marine Midland had formally declared Barrier in default. It requested the court to:

'1. Order that the attached Line marking the case Paid, Settled and Satisfied be filed in this case, and

'2. Order that the Release executed by the Plaintiff be retained by Marine Midland, and

'3. Award Judgment to Defendant Marine Midland in the amount of $2,152.22, together with repossession costs, if any, and $322.82 attorney's fees, plus interest and costs.

'4. Order the Plaintiff to deliver the automobile, being one 1969 GTO Pontiac 8 cylinder, Model GTO Judge, convertible, Serial No. 242679B162902 to Defendant Marine Midland Trust Co. for sale by it with reasonable notification to the Plaintiff of time and place of any public or private sale, and

'5. Order the Defendant Marine Midland to report the proceeds of said sale and, if there be any differences, from the judgment awarded Defendant Marine Midland under paragraph 3, above, to satisfy said deficiency from the $1,100.00 held by Defendant Marine Midland for the account of Plaintiff, and '6. Order Defendant Marine Midland to disburse any balance held by him after the conclusion of the proceedings set forth in paragraph 4 and 5 above, and if there be any deficiency owed by the plaintiff to the Defendant, order the Defendant to pay the same forthwith.

'7. Order the Plaintiff and his attorney to immediately cease and desist from further public comment concerning this matter.'

February 24-Interrogatories filed by Barrier directed to Marine Midland. ⁴

February 26-Pleas filed by State National together with cross-claim against Marine Midland.

March 18-Motion for summary judgment was filed by Marine Midland.

The matter ultimately came on for hearing on the motion for summary judgment. A judgment by default was entered in favor of State National against Marine Midland 'subject to ex parte proof.' In granting the motion of Marine Midland for summary judgment the circuit court also:

'ORDERED that:

(1) The Line attached to the Plea on Equitable Grounds marking the case Paid, Settled and Satisfied be filed in this case, and it is further

(2) The Release executed by the Plaintiff be retained by Marine Midland Trust Company of Southern New York, and it is further

(3) Judgment be awarded to defendant Marine Midland Trust Company of Southern New York in the amount of $2,152.22, together with $45.00 of repossession costs and $322.82 attorney's fees, plus interest and costs, and it is further

'ORDERED that:

(4) The Plaintiff deliver the automobile, being one 1969 GTO Pontiac 8 cylinder, Model GTO Judge, convertible, Serial No. 242679B162901 to Defendant Marine Midland Trust Company for sale by its with reasonable notification to the Plaintiff of time and place of any public or private sale, and that,

(5) ...