Deutsch v. Bond

• Decision Date: 01 March 1877
• Citation: 46 Md. 164
• Parties: SOLOMON DEUTSCH and WILLIAM DEUTSCH, use of SIMON KANDERS v. JAMES BOND.
• Court: Maryland Court of Appeals

46 Md. 164

SOLOMON DEUTSCH and WILLIAM DEUTSCH, use of SIMON KANDERS v. JAMES BOND.

Court of Appeals of Maryland

March 1, 1877

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

Exception.--At the trial the plaintiffs offered the following prayer:

1. If the jury shall believe from the evidence, that the contract in writing offered and admitted in evidence between Deutsch & Co. and George W. Simpson, was performed in accordance with the various provisions therein contained as testified to by plaintiffs' witness, Wm. Deutsch, and that 300 copies of said work entitled, "Female Instructor and Guide to Health," were delivered and accepted by said Simpson and that the balance remain subject to the order of said Simpson in the possession of the plaintiffs, at the request of said Simpson, and that shortly after the signing of said contract as testified to by said Deutsch, a paper-writing in evidence signed by the defendant, was handed, and in compliance of said contract made with said Simpson, and that said defendant did sign the said paper-writing, together with the other persons whose signatures are thereto attached, and that the said Simpson is insolvent, then their verdict shall be for the plaintiffs, upon the responsibility incurred by the said defendant by said paper-writing, to the amount of the balance due, with interest, for the printing of said work, "Female Instructor and Guide to Health."

And the defendant offered the three following prayers which were rejected also.

1. That upon the evidence the plaintiffs are not entitled to recover because no liability attached to the defendant, by the instrument of writing or guaranty offered in evidence, there being no sufficient consideration mentioned in said instrument of writing.

2. That there is no evidence in the cause from which the jury can find that the work was delivered, and that it was not paid for within thirty days of its delivery and before the institution of this suit, and they must find for the defendant.

3. That if from the evidence, the jury shall believe that Bond signed the paper offered in evidence, with the express understanding that the number of signers should be twenty, as indicated upon the paper by the numerals, and that the paper was in its present condition (except the interlinings) shown to Wm Deutsch, one of the firm, by Simpson, for the purpose of informing him of his progress in getting signatures, and it was then understood by said Deutsch, that said Simpson's original intention was to procure twenty names to the paper, then that was sufficient to put Deutsch upon inquiry, and if they shall find also, that said Deutsch by his voluntary act caused said Simpson to cease his endeavors to procure signatures to the paper, and took into his possession the said paper without the knowledge or consent of said Bond, then the plaintiffs are not entitled to recover, and they must find for the defendant.

The Court, (GAREY, J.,) refused the plaintiffs' prayer and all the defendant's prayers, and granted the following instruction in lieu of the defendant's first prayer.

"The Court instructs the jury that the paper-writing given in evidence, for the purpose of holding the defendant as a maker thereof, is not sufficient for that purpose, for want of a consideration expressed therein, and that the plaintiffs cannot recover in this action." The plaintiffs excepted.

The jury rendered a verdict for the defendant and judgment was entered accordingly. The plaintiffs appealed.

The cause was argued before BARTOL, C.J., STEWART, GRASON and MILLER, J.

Rufus W. Applegarth, for the appellants.

The original debt having been founded upon a good consideration, and the guaranty given before the work was undertaken or the debt incurred, and having been the inducement for performing the work, then the consideration for the original contract is a consideration also for the guaranty, and is not necessary that it should be stated in express terms in the guaranty. Nabb vs. Koontz, 17 Md., 283, and the case there cited.

The paper-writing "Exhibit, No. 2," is a sufficient promise in writing under the Statute of Frauds, the consideration therefore appearing by necessary inference, which is all that is required. The agreement of the defendant to be responsible to the plaintiffs for $350, in thirty days after the final delivery of the work, the consideration for which, the delivery of the work, may be fairly inferred to sustain the guaranty, and the Court was therefore in error in instructing the jury, that the plaintiff could not recover for the want of a consideration expressed in the written guaranty. Hutton vs. Padgett, et al., 26 Md., 228, and the case there cited. See also Mitchell vs. McCleary, 42 Md., 374, where in a similar case the Court say, page 377, "It is conceded, that the fact that there is no direct consideration set out in the guaranty is covered by the decision in Nabb vs. Koontz, 17 Md., 283."

Ed. B. Bates, for the appellee.

MILLER J., delivered the opinion of the Court.

The appellants sued the appellee upon the following agreement signed by him and others, but not under seal.

"We, the undersigned, take pleasure in recommending G. W. Simpson, M. D., to Deutsch & Co. We also severally agree to become responsible for three hundred and fifty dollars to said Deutsch & Co., to be forthcoming in thirty days after the final delivery of the work."

The Court instructed the jury that this instrument was not sufficient to bind the defendant, for want of a consideration expressed therein, and that the plaintiffs could not therefore recover in this action.

It appears from the record, that Doctor Simpson, and the...