Cropper v. Graves, 189
| Decision Date | 28 March 1958 |
| Docket Number | No. 189,189 |
| Citation | 216 Md. 229,139 A.2d 721 |
| Parties | Donald CROPPER et ux. v. Henry G. GRAVES. |
| Court | Maryland Court of Appeals |
L. Hollingsworth Pittman, Pocomoke City (John L. Sanford, Jr., Berlin, on the brief), for appellants.
William H. Price, Snow Hill, for appellee.
Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
The sole question involved in this appeal is whether the appellants, defendants below, showed sufficient cause or controversy to strike out a judgment entered against them by confession and have said controversy submitted to a jury for determination.
On April 16, 1957, the appellee obtained a judgment by confession against the appellants in the Circuit Court for Worcester County. Within the time permitted by Maryland Rule 645, subd. b, the appellants filed a motion to strike out the judgment, alleging that they were entitled to certain credits on the note, which the appellee had refused to give them. The motion was set for hearing, and two witnesses were sworn, one, the appellee, and the other, one of the appellants. After hearing their testimony, the trial judges were of the opinion that no sufficient controversy had been shown by the appellants; so, the appellee's judgment was made final, and the appellants appealed.
Donald Cropper, one of the appellants, testified that he had been engaged in the contracting business for ten years, and during that time had purchased, both for himself and others, concrete and other building materials from the appellee, Henry G. Graves. That when he started doing business with Graves, Graves had agreed to give him a five per cent discount or credit, in the nature of a commission, on all business done with, or referred to, Graves by Cropper, payable at the end of each business year. That Cropper had been indebted to Graves on an open account on and before December 4, 1954, and had been requested by Graves to execute the note, the subject of this controversy, together with Cropper's wife, the other appellant, who was not indebted to Graves, for the balance of Cropper's account at that time. The note in question was executed and delivered to Graves together with a check in partial payment of the account, at Graves' home at about eight or nine o'clock at night on the day the note was dated. At that time, it was agreed between Graves and Cropper that the five per cent discount or credit 'would continue to be given and that was to help (him) pay off the note.' Cropper repeated that the discount was to apply to the note and that Graves stated this at the time of delivery of the note, in these words: 'Don I'll give you a kickback and apply it to that note.' Cropper also testified, without contradiction, that his wife, who was not indebted to Graves, would not have signed the note unless the five per cent discount or credit would apply to the payment of the note.
Cropper then testified as to several construction projects in and around Ocean City, Maryland, for which he had ordered concrete and other building materials from Graves, after the execution of the note, such as Surf and Sands Motel, Stoaway Motel, Ocean Park Motel, Islander Motel, a drive-in theater, and construction work for Davis & Lynch Fish Co., Inc.; for all of these he should have received a discount or credit which should have been applied to payment of the note in question, but had not.
Cropper further testified as to the construction, for Graves, of a one-car garage at Graves' farm in 1955, and a cowpound or fence in 1956, for which he had not been paid, but for which credit should have been given him on the note. He also stated that he had an open account running with Graves from the time of the execution of the note, but did not know its balance or that he had received any credit on such account for the work done for Graves in 1955 and 1956, or for the discounts on business with, and referred to, Graves since December 4, 1954.
Graves agreed that in 1951 he and Cropper had entered into an arrangement whereby Cropper would be given a discount on his bills and any other business that Cropper might send to him. However, Graves maintained that the bills were to be paid by the fifteenth day of the month following the purchase thereof before the discount would be applied, and that this was his regular trade discount with all contractors. He denied, that he had any other or special arrangement with Cropper, but later said that he gave Cropper credit...
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