Cohen v. Karp

• Decision Date: 26 October 1923
• Docket Number: 12.
• Parties: COHEN ET AL. v. KARP ET AL.
• Court: Maryland Court of Appeals

122 A. 524

143 Md. 208

COHEN ET AL. v. KARP ET AL.

No. 12.

Court of Appeals of Maryland

October 26, 1923

Appeal from Court of Common Pleas of Baltimore City; Henry Duffy Judge.

Action by Max Cohen, surviving partner of Max Cohen and another trading as Bernstein, Cohen & Co., against H. Karp, also known as Harry Karp, and another. Judgment for defendants and plaintiffs appeal. Reversed.

J. Louis Shochet and Louis Mitnick, both of Baltimore (Jacob J. H. Mitnick, of Baltimore, on the brief), for appellants.

Eldridge Hood Young, of Baltimore (Young & Crothers, of Baltimore, on the brief), for appellees.

PATTISON J.

This is an appeal from a judgment recovered by the appellees Harry Karp and Rebecca Karp his wife against the appellant Max Cohen surviving partner of Max Cohen and Philip Bernstein, copartners trading as Bernstein, Cohen & Co.

The appellees executed and delivered unto the payees a promissory note of which the following is a copy:

"$500.00 Baltimore, Md., April 9, 1919.

Four months after date we jointly and severally promise to pay to the order of Bernstein, Cohen & Co. five hundred and 00/100 dollars * * * at East Branch, Bernstein, Cohen & Co., Bankers, for value received, with cost of collection or any attorney's fees, if incurred, in case payment shall not be made at maturity.

his H. X Karp. mark

her R. X Karp." mark

The above note was not paid at maturity, and a suit was brought thereon by the appellant.

The declaration contained six common counts and one special count. The defendants filed the pleas of never indebted and never promised, as alleged, and the further plea of set-off, which contained not only the common counts but a special count in which it was alleged that the plaintiff, on or about the 15th day of May, 1919, paid to J. Castleberg & Sons, out of the funds deposited with the said plaintiff by the defendant H. Karp the sum of $800, without his consent or authority, which sum is still owing by the plaintiff.

After successive pleadings, issues were joined and the case proceeded to trial, which resulted in a verdict for the defendants for $336; that sum being the excess of the set-off claim of the defendant Harry Karp over the claim of the plaintiff upon which the suit had been instituted.

A motion for a new trial was thereafter filed and granted; the grounds of the motion, however, are not disclosed by the record.

The case came up the second time for trial upon the pleadings as stated, and the jury again rendered a verdict for the defendants Harry and Rebecca Karp, for the sum of $350.65; the same being the excess at that time of the claim of Harry Karp over that of the plaintiff.

A motion for a new trial and one in arrest of judgment were made, but both motions were overruled, and a judgment was entered for both defendants upon the verdict rendered.

In the trial of the case eighteen bills of exception were noted; of these seventeen relate to evidence and one to prayers. In addition to the rulings on the evidence and the prayers are the rulings of the court on a demurrer to the rejoinder and upon the motion in arrest of judgment, which are to be reviewed by this court.

The sole defense in this case is that of set-off, which is unknown to the common law, and owes its origin altogether to statute. Poe's Pleadings, § 613; Annan v. Houck, 4 Gill, 331, 45 Am. Dec. 133; State v. B. & O. R. Co., 34 Md. 344.

In the different states statutes have been passed in relation to the defense of set-off, and consequently we must look to the statutes of each state to ascertain the character and extent of such defense therein.

In this state the statutes (sections 12 and 13, art. 75, Code, as amended by the Act of 1914, c. 393) provides that:

Sec. 12. "In any suit ex contractu or upon any judgment, if the defendant shall have any demand or claim arising ex contractu, or upon judgment against the plaintiff, the defendant may plead such claim specially, whether such claim of the defendant be for liquidated or unliquidated damages. * * *"

Sec. 13. "In every case where a special plea is filed as authorized by the preceding section, judgment for the excess of the one claim over the other, as each is proved, with costs of suit, shall be given in favor of the plaintiff or the defendant, according as such excess is found in favor of the one or other of the parties," etc.

The defense of set-off, technically, means a cross-claim, and is confined to mutual debts between the plaintiff and defendant. The object of allowing it is to prevent circuity of action and to enable the parties to adjust in one suit claims which, at common law, could not be settled without two or more actions. To entitle the defendant to make such a defense, he must not only have a right to receive the amount due him from the plaintiff, but his claim must be of such a nature that he can sue for and recover...