Bright v. Ganas, 42.

• Court: Court of Appeals of Maryland
• Writing for the Court: SLOAN, Judge
• Citation: 189 A. 427
• Parties: BRIGHT v. GANAS.
• Docket Number: No. 42.,42.
• Decision Date: 20 January 1937

189 A. 427

BRIGHT
v.
GANAS.

No. 42.

Court of Appeals of Maryland.

Jan. 20, 1937.

189 A. 427

189 A. 428

Appeal from Circuit Court, Somerset County; T. Sangston Insley, Judge.

Suit by Paul Ganas against Robert S. Bright, executor of James G. Darden, deceased. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Argued before BOND, C. J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

V. Calvin Trice, of Cambridge (Robert F. Duer, of Princess Anne, and Q. C. Davis, Jr., of Norfolk, Va., on the brief), for appellant.

W. Laird Henry, Jr., of Cambridge, and George H. Myers, of Princess Anne (Henry & Henry, of Cambridge, on the brief), for appellee.

SLOAN, Judge.

The plaintiff, Paul Ganas, sued the defendant, Robert S. Bright, executor of James G. Darden, deceased, on an alleged testamentary contract for the sum of $20000. The judgment being for the plaintiff for $8,990, the defendant appeals.

The first count of the declaration set up an oral agreement between the plaintiff and James G. Darden, entered into in the month of May, 1929, whereby the plaintiff was to live with Darden, at the latter's newly purchased home at Cambridge, Md., as a servant, and, in consideration of the plaintiff's so continuing with Darden during his lifetime, the plaintiff was to receive on Darden's death "out of his estate" the sum of $20,000; but that Darden died without having made provision for the plaintiff in his will (dated September 14, 1931), which was admitted to probate and recorded in Dorchester county; that Darden accepted the services of the plaintiff which were faithfully rendered, and so continued to November 18, 1933, when Darden died. The second count was "for work done' and materials furnished" at decedent's request. The defendant demurred to the first count of the declaration, and demanded a bill of particulars as to the second count. A bill of particulars having been filed, the defendant then demurred to the second count, and to the whole declaration, a suggestion for removal was made by the defendant, and the case removed to Somerset county, where the demurrers were all 'overruled, and the case tried. At the conclusion of the evidence, the trial judge granted a prayer for an instructed verdict for the defendant on the first count, so that the question of an agreement to devise or bequeath to the plaintiff had been treated by the defendant as no longer in issue on the appeal, and the plaintiff has not appealed, so that the right of recovery on the first count has been adjudicated against the plaintiff, and the only question then on the pleadings is as to the legal sufficiency and effect of the second or common count.

The defendant's position seems to be that the common count in assumpsit is not available or is out of place in a suit on an express contract, and that it is only in order when recovery is sought on an implied contract, or one in which the only measure of damages would be on a quantum meruit. It has never been considered faulty pleading to include the common counts, when there is a count on an express contract. The practice in this state is to do both, or as said in Poe's Pleading, § 583: "In assumpsit a careful pleader, when declaring on a special contract, seldom omits the common counts." In Bethlehem Steel Co. v. Dornberg, 135 Md. 121, 108 A. 474, 475, a suit by a broker for commissions on a sale of real estate, it is said: "The first three counts in the declaration were the common counts in assumpsit, on an implied contract, while the fourth count sets out a specific contract; and it needs no citation of authorities for the proposition that a plaintiff cannot recover in the same suit upon both an implied and express contract." Conservation Co. v. Stimpson, 136 Md. 314, 110 A. 495; Hamilton v. Thirston, 93 Md. 213, 48 A. 709; Gill v. Staylor, 93 Md. 453, 49 A. 650; Id., 97 Md. 665, 55 A. 398. It is well settled in this state, even if there is a special contract and the plaintiff has performed, he may declare on the common counts. Walsh v. Jenvey, 85 Md. 240, 36 A. 817, 38 A. 938; Southern Bldg. Ass'n v. Price, 88 Md. 155, 41 A. 53, 42 L.R.A. 206; Fairfax Forrest, etc., Co. v. Chambers, 75 Md. 604, 23 A. 1024; Ellicott v. Turner & Peterson, 4 Md. 476. The proper measure of damages in such case is the compensation fixed by the contract.

189 A. 429

The defendant's contention is that the two counts are inconsistent, and they may be, but that cannot be determined until the evidence is in, and then the law must be applied by the instructions of the court to the facts in evidence. What was done in this case is the course usually pursued in the prosecution of suits for recovery of promised bequests and legacies in payment of alleged services, the claimant fortifying himself, in the event of failure to establish a specific contract by resorting to the quantum meruit under the common counts. Baker v. Lauterbach, 68 Md. 64, 11 A. 703; Ellicott v. Turner & Peterson, 4 Md. 476. In Hamilton v. Thirston, 93 Md. 213, 48 A. 709, the plaintiff declared only on a specific oral agreement with an uncle for a devise in consideration of services. The statute of frauds was not pleaded, but defense was on that ground, was sustained in this court, and the judgment reversed with leave to the plaintiff to apply for a remand to so amend his pleadings as to declare in assumpsit for the value of his services. 1 Woerner, Law of Administration (3rd Ed.) p. 80, § 37; Schutt v. Missionary Society, 41 N.J.Eq. 115, 3 A. 398; Clark v. Cordry, 69 Mo.App. 6; Schwab v. Pierro, 43 Minn. 520, 46 N.W. 71; In re Williams' Estate, 106 Mich. 490, 64 N.W. 490; Pelton v. Smith, 50 Wash. 459, 97 P. 460. If the plaintiff established by evidence facts sufficient to show a contract to bequeath him a specific sum in consideration of his serving the decedent to the end of his days, unless sooner terminated by the act of either, then the plaintiff would be entitled to recover under the first count. If the evidence shows no contract, but an understanding that the services were being rendered on the implied agreement that they be paid for at their reasonable value, the second count, the sixth in Roycroft v. Nellis, 171 Md.——, 188 A. 20, is sufficient in form for this purpose. The same count would also be proper in form if it should be found that there was an express contract, the work done, and nothing left but the payment of the money. Walsh v. Jenvey, supra. For the reasons which we have stated, the demurrers were properly overruled.

At the conclusion of the evidence, the plaintiff offered three prayers, the first and second of which were refused and the third granted, the special exception to which was overruled. The defendant offered ten prayers, of which the first and seventh were granted, and all others refused. The plaintiff specially excepted to the defendant's eighth prayer, and the exception sustained, and the defendant's twenty-sixth and twenty-seventh exceptions are to the rulings on the prayers adverse to him. The defendant's first prayer, which was granted, was for a directed verdict, on the first count of the declaration on the express contract. There were twenty-four exceptions to rulings on the evidence, of which six have been abandoned by the defendant, and thirteen have been treated by both sides as out of the case, by reason of the granting of the defendants first prayer, though the plaintiff asserts that the evidence to which the thirteen exceptions, applicable to the first count, remained in the case to be considered by the jury in so far as applicable to the second count. Yet the plaintiff says they are not to be considered on this appeal. The evidence excepted to, pertaining to the first count, was admitted subject to exception. The defendant moved to strike it out, and he agreed if the court granted his first prayer it would not be necessary to pass on the motion to exclude the evidence. The trouble, as we...