Carozza v. Brannan

• Court: Maryland Supreme Court
• Writing for the Court: DELAPLAINE, Judge.
• Citation: Carozza v. Brannan, 186 Md. 123, 46 A.2d 198 (Md. 1946)
• Decision Date: 14 March 1946
• Docket Number: 84.
• Parties: CAROZZA v. BRANNAN.

46 A.2d 198

186 Md. 123

CAROZZA v. BRANNAN.

No. 84.

Court of Appeals of Maryland

March 14, 1946

Appeal from Superior Court of Baltimore City; J. Abner Sayler Judge.

Suit in assumpsit by Frank Carozza against Edward J. Brannan administrator cum testamento annexo of the estate of Robert J. Cremen, deceased, for the balance due on a running account. From a judgment for plaintiff in less than the amount sued for, he appeals.

Modified and judgment entered for plaintiff in the full amount of his claim.

A. David Gomborov, of Baltimore (Gomborov & Gomborov, of Baltimore, on the brief), for appellant.

Albert F. Wheltle, of Baltimore (Julius A. Victor, Jr., of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

DELAPLAINE Judge.

This is a suit in assumpsit for $2,293 brought by Frank Carozza against Edward J. Brannan, administrator c.t.a.

of the estate of Robert J. Cremen, deceased. The trial court, sitting without a jury, disallowed a charge for $700 for the use of a crane, and rendered judgment in favor of the plaintiff for $1,593. Plaintiff is appealing from the judgment on the ground that be should have been awarded the full amount of his claim.

In November, 1942, Carozza, a contractor, rented the crane to Cremen, who was engaged in the hauling and equipment business, for $700 a month. Cremen thereupon rented it to Arundel Corporation for the same amount. In February, 1943, Arundel Corporation returned it, and Cremen, with plaintiff's permission, then rented it to Byrne Organization, which used it from February 10 to March 10, 1943.

The evidence shows that Cremen received $1,843.37 from Arundel Corporation and $700 from Byrne Organization, making a total of $2,543.37 for the use of the crane for the whole period from November 22, 1942, to March 10, 1943. On the other hand, it appears that plaintiff received from Cremen only $1,843.37. Thus it is evident that Cremen owed plaintiff a balance of $700 on this account.

According to the evidence, plaintiff received three payments from Cremen: $700 on January 30, 1943; $443.37 on April 2, 1943; and $700 on April 2, 1943. It is the contention of the administrator of Cremen's estate that the word 'Byrne' on the last check for $700, dated March 30, 1943, and payable to the order of Carozza, was a direction to Carozza to apply the payment on the charge for the final period from February 10 to March 10, 1943, and not as a credit on the balance due prior to that time. The administrator claims, therefore, that plaintiff cannot recover because the declaration implemented by bill of particulars claims $700 for the period from February 10 to March 10, and the charge for that period had been paid.

We recognize, of course, that a notation on a check may be either an application of payment on a particular account, or simply a memorandum for the convenience of the drawer. In Duckett v. National Mechanics' Bank of Baltimore, 86 Md. 400, 409, 38 A. 983, 986, 39 L.R.A 84, 63 Am.St.Rep. 513, the court stated that a memorandum written on a check by the drawer for his own convenience does not constitute a notice to the bank that the check is to be paid from, or credited to, a particular account. It appears from the record that the final check for $700 was written and signed by Cremen's bookkeeper, Miss Minnie Raber, not by Cremen himself. From a study of the evidence in the case, we find no doubt that the bookkeeper's notation of the word 'Byrne' on the check was intended by her as a memorandum for...