Calvert v. Carter

• Decision Date: 27 November 1861
• Citation: Calvert v. Carter, 18 Md. 73 (Md. 1861)
• Parties: CHARLES B. CALVERT AND GEORGE H. CALVERT, v. CHARLES H. CARTER.
• Court: Maryland Court of Appeals

18 Md. 73

CHARLES B. CALVERT AND GEORGE H. CALVERT, v. CHARLES H. CARTER.

Court of Appeals of Maryland.

November 27, 1861

Arbitration bonds recited that the complainant, in right of his wife, claimed to be entitled to certain portions of the estates " of the father, aunt and other relatives and ancestors," of his wife's mother which had come to the hands of the defendant as the legal representative of his father, and that the parties had mutually agreed to refer to arbitrators, " all the differences between and among them, and all said claims as aforesaid, in order to avoid all and every litigation in court among members of the same family."HELD:

1st.That these bonds might, without violating any sound rule of construction, be understood as submitting to the arbitrators both the paternal and maternal successions.

2nd.But as evidence merely, they cannot have the conclusive effect of an admission by the parties, that a previons settlement of the " paternal succession " made years before, was not intended at the time, to be final, or of countervailing other evidence in the cause, conclusively establishing the finality of that settlement.

Where an award is declared void, the agreement of submission or arbitration bond, as a binding obligation falls with it.

The action of the court below on an application for leave to file a supplemental answer, depends upon its discretion, and cannot be assigned as error or reviewed on appeal.

The Act of 1854, ch. 230, merely enlarges the time within which amendments may be made, but they are still to be made on application to the court, which must judge of the propriety of the proposed amendment, and no appeal lies from its action in such cases.

The propriety of allowing a supplemental answer to be filed depends upon its avowed objects and purposes, as stated in the petition for leave to file it, and not upon other and distinct matters contained in the answer itself, and not referred to in the petition.

Where a petition for leave to file a supplemental answer, avowed the single purpose to be, to surcharge and falsify a settlement, which, as the court had decided, was final and could not be disturbed, the refusal of the application was correct.

The answers to a bill for an account of a fund called the " maternal succession, " relied upon an award as a defence, and admitted the ascertainment made by the arbitrators to be correct.One of the arbitrators was examined on the part of one the defendants, and was asked to state what sum would have been adjudged due, if it had been shown the accounts of the paternal succession had been previously adjusted?This question was put by agreement of counsel, to relieve the parties from the necessity of entering into a full examination of the accounts, if the award should not be held obligatory on the complainant, and the award was subsequently set aside.HELD:

That the answer to this interrogatory, stating that the sum of $12,037.54, would have been adjudged due as of the 12th of January 1838, is competent evidence binding upon all the parties, and conclusive of the amount due on account of the " maternal succession."

The usual form of a decree for account, is, to direct the auditor to state the account from the pleadings and proofs in the case, and such further proofs as may be laid before him by the parties.

But it is competent for the court, in its discretion, to restrict the auditor to the pleadings and proofs already in the cause; and unless it clearly appears, that material and pertinent evidence, which it was in the power of the party to produce, has been thereby excluded, it is no ground for reversal.

It is not good ground for rejecting evidence, admissible per se, that it is cumulative of other evidence in the cause.

The general rule upon the subject of appropriation of payments, gives to the debtor the right, in the first place, to make the application, and then, upon his omitting so to do, to the creditor.

If a party is indebted in several accounts, and makes payments, and there is no application by the debtor or creditor, the law will appropriate them according to the justice of the case, and will generally apply them most beneficially for the debtor.

In this case, where the party paying was trustee of a fund to which the party, to whom the payments were made, was entitled only to the interest for life, and his children to the principal on his death, it was held, that the payments should be applied to the interest.

To a statement of payments a memorandum was appended, signed by the complainant, certifying that he had received of the defendant, executor of George Calvert, the various sums charged in the statement, on account of his late wife's claim against the estate of said George Calvert, for her portion as one of the representatives of her mother.HELD:

That the defendant was entitled to the benefit of this memorandum on the question of application of payments, but it ought not to have a conclusive effect in determining the application of the payments, because it was made with a view to a settlement by arbitration, and was manifestly erroneous in some particulars.

Exceptions to an auditor's report, filed before the action of the court on the report, and before the cause was submitted, are in time, and ought to be considered, though not filed within the time limited in the previous order of ratification nisi.

Under a decree requiring the auditor to state the account from the proofs already in the cause, no notice of stating the account is necessary; the only object of such notice is to enable the parties to produce proof before the auditor, which, in this case, was not admissible.

An exception to an account, that the exceptant is entitled to credits in addition to those therein allowed him, is too general in its term to gratify the requirement of the Act of 1825, ch. 117, sec. 2.

It is not in the province of the creditor to tax the costs in his account, but his having done so, is no ground for reversal in a case where the subject of costs was specially disposed of by the decree below, and will be provided for by the decree of this court.

APPEALS from the Equity side of the Circuit Court for Prince Georges County.

For a statement of the pleadings, evidence and proceedings in this case, prior to the present appeals, reference must be made to 4 Md. Ch. Dec., 199, and 6 Md. Rep., 135.It is only necessary to re-state here that the bill was filed by the appellee against the appellants, for an account of the effects of the maternal grand-mother of the complainant's deceased wife, who was the daughter of George Calvert, deceased, the father of the appellants.The complainant is tenant for life, and his children, remainder-men, in fee of the fund in question, called in the proceedings the " maternal succession." The bill alleges a settlement of the " paternal succession " in 1835, 1836.The answers deny this settlement, but plead an award made January 20th, 1848, by Coxe and Bradley as a full defence to the bill, and insist that the amount determined by that award is correct, and is all the defendants are responsible for.The chancellor, (4 Md. Ch. Rep., 199,) decided this award void, because not certain and final; and also, upon all the evidence before him, decided that the arbitrators transcended their powers in disturbing the settlement of the " " " paternal succession." The Court of Appeals, (6 Md. Rep., 135,) upon appeal from the decree or order of the chancellor referring the case to the auditor to state accounts from the pleadings and proofs then in the case, and such further proofs as may be laid before him, in conformity with the chancellor's opinion, and reserving for further consideration all questions not adjudicated by that opinion, affirmed the decree upon the ground that the award was void for uncertainty, and therefore removed from the plaintiff's way in this case, but expressed no opinion upon the other questions decided by the chancellor, and sent the case to the Circuit court for Prince George's county for further proceedings.

When the case reached that court it was referred to the auditor to state an account, in conformity with the opinions of the chancellor and of the Court of Appeals.Two accounts were then stated under direction of the complainant's solicitor, the one charging the defendants with $13,000, being the medium between $12,000 and $14,000, admitted to be the share of Mrs. Carter, by the letter to her of the defendant, George H. Calvert, dated March 10th, 1840, and the other with $12,037.54, shown to be the share of Mrs. Carter by the answer of Mr. Bradley to the 14th interrogatory on the part of the defendant.To these accounts the defendants filed exceptions, because stated in obedience to the instructions of complainant's solicitor, and without notice to the exceptants; because there is no evidence competent and proper to show what sum, in certain, is chargeable against the exceptants; and because they are entitled to large credits over and above those thereby allowed.

A petition was then filed by the defendants, asking leave to file a supplemental answer for the purpose of surcharging and falsifying the settlement of the " paternal succession." This petition was accompanied by a long supplemental answer, and various exhibits relating to that succession and other matters, and it was agreed by the solicitors of the parties, that this petition and answer should be filed, subject to the objection reserved by the complainant, and which he is to be at liberty to make at the final hearing, to have like effect as if it had been made immediately after the filing of the petition, that if, on said hearing, the court should be of opinion that the defendants were...