Broaddus v. First Nat. Bank

• Decision Date: 11 June 1931
• Docket Number: 31.
• Parties: BROADDUS v. FIRST NAT. BANK OF HAGERSTOWN.
• Court: Maryland Court of Appeals

155 A. 309

161 Md. 116

BROADDUS v. FIRST NAT. BANK OF HAGERSTOWN.

No. 31.

Court of Appeals of Maryland

June 11, 1931

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

Action by Catherine Broaddus against the First National Bank of Hagerstown, executor of the last will of Emma K. Thomas deceased. Judgment for defendant, and plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Elias B. Hartle and Jos. W. Wolfinger, both of Hagerstown (Calvert K. Hartle, of Hagerstown, on the brief), for appellant.

Robert H. McCauley, of Hagerstown, for appellee.

DIGGES J.

The suit in this case was brought by the appellant against the appellee in the circuit court for Washington county seeking to recover the sum of $2,300. The defendant is the executor of the last will of Emma K. Thomas, deceased. The declaration contains the common counts, and this special count: "And for that the said Emma K. Thomas, by her verbal contract entered into with Catherine Broaddus, on or about the 24th day of September, A. D. 1929, wherein the said Emma K. Thomas promised and agreed that in consideration of the said Catherine Broaddus purchasing a certain lot or parcel of land, together with the improvements thereon, situate and lying in the City of Washington, in District of Columbia, and known and designated as residence No. 6409 Seventh Street, N W., that she, the said Emma K. Thomas, would pay the sum of five thousand dollars ($5,000.00) on the purchase price of the same, and that in pursuance of said agreement the said Catherine Broaddus purchased said property and that the said Emma K. Thomas made two payments on account of the purchase price thereof, to wit: the sum of $2,000.00 on the 24th day of September, A. D. 1929, and the sum of $700.00 on the 27th day of September, A. D. 1929, leaving a balance due thereon and unpaid of $2,300.00." At the close of the plaintiff's case, at the instance of the defendant, the court instructed the jury to return a verdict in favor of the defendant. This ruling is the only exception contained in the record. From the judgment entered on this verdict for costs the appeal here is prosecuted.

The defendant's decedent died in November, 1929, leaving a last will and testament, and as her next of kin two sons, one of whom, living in Texas, has no children, and the other is the father of the plaintiff, herself an only child. The plaintiff's maiden name was Catherine Thomas. She was married on June 14, 1929, to Walter A. Broaddus, who at the time of his marriage lived with his parents in or near the District of Columbia. Immediately after their wedding trip they resided with his parents. The record discloses that some time about August, 1929, the decedent Emma K. Thomas told several persons that she proposed to give her granddaughter Catherine Broaddus the sum of $5,000 as a wedding present, to be used in the purchase and establishment of a home. This purpose was testified to, in slightly varying language, by the witnesses: Mrs. Morrison, a cousin of Mrs. Thomas, stating: "She (Mrs. Thomas) told me that she had told Catherine when she came off of her wedding trip, when she got ready to go to housekeeping she would give her $5,000 towards a home." Mrs. Eader, a relative of the plaintiff, testified that she knew Mrs. Thomas quite well; that Mrs. Thomas made her home with witness' sister, who rents part of witness' house; that she had a conversation with Mrs. Thomas in respect to a wedding present that witness had given Catherine; that Mrs. Thomas thanked her for the wedding present on behalf of her granddaughter, and told witness that she had promised Catherine $5,000 towards buying a home for herself; this was on August 19, 1929; that Mrs. Thomas went to Washington and bought the home, which she said she had bought for them, meaning Mr. and Mrs. Broaddus; that she was to pay $5,000 on the home and they were to make up the difference. Mrs. Mamie Thomas, the mother of Catherine Broaddus, testified that on June 19, 1929, when Catherine returned from her wedding trip, she and her husband went to the room of the grandmother, who was sick at the time, and shortly thereafter came down and told witness what had taken place upstairs; later witness went up and told Mrs. Thomas that she was glad to know what she had promised Catherine, and Mrs. Thomas replied, yes, she meant to help Catherine to get a home, that she told Catherine she meant to help her get a home; that during the week of August 18th Catherine was home on a visit, at which time she and her grandmother had a conversation, the grandmother the following day saying to witness that she had had a conversation with Catherine about building a home and Catherine was not interested, and witness said: "How could they be interested? Neither one of them have anything to do anything like building a home." And Mrs. Thomas thought that the $5,000 that she intended and told them she was going to give towards their home would buy them a plot of ground and build them a little bungalow. Witness further stated that on the day before her daughter and son-in-law began housekeeping, witness had a conversation with Mrs. Thomas and "asked her why she had come back from Washington, why she did not pay the $5,000 that she had promised on the property and give the amount down that they could carry this property along, and she said her full intentions were, afterwards she found she only had the $2,000 in bank and she borrowed the $700 to make the $2,700, and she came back to Hagerstown with the intention of going to Mr. Flook, who had been seeing to her affairs, and gave him permission to call the money in that she had in Washington, I think it was some stock she had down there, or mortgage, something of that sort, I don't recall just exactly, but something of the sort, it was money anyhow. She thought that he could get them in, and he thought so too, about the first of November, and then she would pay the balance of the $5,000 off, and that would give Catherine then the balance, I just don't know, I can't offhand give the balance, but after the $5,000 was paid they could carry the others in the Building and Loan. That was her intention, and they could carry that at their wages." The husband of the appellant was asked what conversation he had with Mrs. Thomas in which she spoke of buying this property for his wife, and testified that "the first time we went up there following our return from our wedding trip, when I went to tell Mrs. Thomas good-bye before returning back to Washington, she told us good-bye and then told me, when we got ready to go in a home of our own that she had told Catherine that she was going to give her some money towards the place"; that later Mrs. Thomas questioned the witness as to the price of real estate in Washington.

The record further discloses that the Broadduses began looking at residential property in the District of Columbia with a view to selecting a home in accordance with what they had...