Commercial Credit Corp. v. Schuck
| Decision Date | 29 June 1926 |
| Docket Number | 39. |
| Citation | 134 A. 349,151 Md. 367 |
| Parties | COMMERCIAL CREDIT CORPORATION v. SCHUCK ET AL. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Joseph N. Ulman Judge.
"To be officially reported."
Suit by the Commercial Credit Corporation against Henry B. Schuck and another, copartners, trading as the Aiken Construction Company. Judgment for defendants, and plaintiff appeals. Reversed, and new trial awarded.
Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, PARKE, and WALSH, JJ.
Malcolm H. Lauchheimer, of Baltimore (Sylvan Hayes Lauchheimer, of Baltimore, on the brief), for appellant.
Richard C. Bernard and Fendall Marbury, both of Baltimore, for appellees.
The question raised on this appeal is closely similar to that raised and decided in the case of Farmers' & Merchants' Nat. Bank v. Harper, 137 A. 702, at this term of court. It is whether, in a suit by an indorsee against the acceptor of a trade acceptance, in compliance with section 312 and other sections of the charter of Baltimore city, commonly referred to as the Rule Day Act, or as the Speedy Judgment Act of the city, the defendant, having, within the time specified for filing pleas and affidavit, filed general issue pleas and an affidavit which did not deny the signature of the acceptor, may, after that time has elapsed, add a denial by amendment of his affidavit, thus recalling the resulting admission of signature.
The Commercial Credit Corporation, on August 5, 1925, filed suit against the present appellees, alleging that the Asbestos Products Corporation had drawn a trade acceptance upon the appellees, for $560, that the appellees had accepted the trade acceptance, and that, by subsequent indorsements and deliveries, for value received, prior to maturity, the Commercial Credit Corporation had become the holder of it and that the appellees had not paid it at maturity. The trade acceptance was attached to the declaration, and appears with the indorsement for acceptance, "Aiken Construction Company (signature of acceptor) per H. Schuck, 2234 Aiken St." An affidavit under the Rule Day Act was also attached. The defendants, now appellees, on August 19, 1925 filed general issue pleas and the required affidavit denying the indebtedness.
The act provides that:
"If there shall be filed with the declaration in said cause any paper purporting to be signed by any defendant therein, * * * the genuineness of such signature shall be deemed to be admitted for the purposes of said cause, unless the said affidavit shall further state that the affiant knows, or has good reason to believe, * * * that such signature was not written by or by the authority of the person whose signature it purports to be." Acts 1886, c. 184,§ 170.
There was no such statement in the affidavit filed at that time. Before proceeding with trial, on March 19, 1926, the defendants, with leave of court, and against the objection of the plaintiff, amended their affidavit by filing it anew with a denial that the signature was written by either of them or by their authority, adding that, if it was, it was written under a misapprehension of the nature of the instrument produced by fraud of certain agents of the Asbestos Products Company. The general issue pleas were refiled with this amended affidavit. The plaintiff declined to join issue on the pleas, as filed with the amended affidavit, and then, at the direction of the court, issue was joined for the plaintiff by the clerk. On the trial which followed, the plaintiff offered the trade acceptance without any evidence to prove the genuineness of the signature, and the trade acceptance was consequently not admitted in evidence, and, there being thus no evidence to prove the plaintiff's case, a verdict for the defendants was rendered at the direction of the court, and judgment was entered accordingly. Exceptions were taken by the plaintiff to the allowance of the amendment, to the exclusion of the trade acceptance from the evidence, and to the granting of the prayer to direct a verdict for the defendants, and, from the judgment for the defendants, the plaintiff has appealed.
The appellees deny the right of appeal in this situation, arguing that the allowance of an amendment is within the discretion of the court, and no appeal lies from it. But that is true, of course, only where the allowance of amendments has been committed to the court's discretion, where power to allow amendments in its discretion has been given the court, and the question here is the preliminary one, whether the court had the power to allow this amendment if in its discretion it should deem it proper to do so. Scarlett v. Academy of Music, 43 Md. 203, 208.
The fact that the appellant, after the court had ordered issue to be joined, proceeded with the trial, to the extent of offering the acceptance and taking the exceptions to the rulings which followed, is urged by the appellees as constituting a waiver of the exception to the allowance of the amendment, but we have not been able to agree in that contention. In the case of Shoop v. Fidelity & Deposit Co., 124 Md. 130, 133, 91 A. 753, Ann. Cas. 1916D, 954, to which the appellees refer for support of it, this court held that instead of filing a replication to amended pleas which the plaintiff thought improperly received, the plaintiff should have declined to reply, suffered judgment to go against her by default, and appealed from that judgment. But that is, in substance and effect, what the plaintiff did here; it took an exception to the allowance of the new affidavit, declined to join issue on the pleas refiled, and, after the court had directed the clerk to join issue for the plaintiff, thus removing the possibility of judgment for want of replication, offered the acceptance in reliance upon the admission of signature originally made, and excepted to the unfavorable rulings which followed. We see no inconsistency or waiver in this procedure.
Taking up the main question in controversy, then, it has been decided in Farmers' & Merchants' Nat. Bank v. Harper supra, that the general act , similar in purpose to the provision in the Rule Day Act for Baltimore city (Acts 1886, c. 184, § 170), and passed at the next session of the Legislature, does not permit withdrawal, by amendment, of the admission of signature which results from a failure to deny it "by the next succeeding pleading." And the strong likelihood that the two provisions, with the same purpose, passed at about the same time, would seek the common object by substantially the same plan, goes far to settle the decision in this case. The differences between the two acts are negligible in this discussion; the use of the next succeeding pleading in the general act, and of the affidavit in the Rule Day Act, are substantially the same step adapted to the situation dealt with in each act. The general act applies to proceedings of all kinds, in many of which there would be no affidavit filed with pleadings, and applies to writings filed at any stage of the case. The Rule Day Act applies only to writings filed with the declaration, and requires an affidavit in every case within its provisions, to be filed next after the declaration. It is significant that the affidavit which, under the Rule Day Act, is to contain any denial of signature, has only a temporary place early in the proceedings, and forms no part of the case after it has been filed. The defendant's affidavit "is in no sense part of the pleadings." Council v. Towson Bank, 103 Md. 469, 474, 64 A. 358; Laubheimer v. Naill, 88 Md. 174, 179, 40 A. 888. It is a paper to be filed only with the original pleas, to avoid the judgment by default provided in the act, and, once that judgment has been avoided, the suit proceeds "as if the Rule Day Act had no...
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