Downey v. Forrester

• Decision Date: 31 January 1872
• Citation: Downey v. Forrester, 35 Md. 117 (Md. 1872)
• Parties: JOHN DOWNEY and THOMAS G. DOWNEY v. JOHN F. FORRESTER, JOHN GILDEA and WM. BANKERD.
• Court: Maryland Court of Appeals

35 Md. 117

JOHN DOWNEY and THOMAS G. DOWNEY v. JOHN F. FORRESTER, JOHN GILDEA and WM. BANKERD.

Court of Appeals of Maryland

Jan. 31, 1872

APPEAL from the Court of Common Pleas.

This was an action of scire facias instituted on the 3d of September, 1870, by the appellants to revive a judgment which had been confessed in their favor on the 3d of August 1867, by the appellees. The appellees pleaded payment and satisfaction, and issue was joined thereon. The plaintiffs asserted that the money admitted to have been received by them from the defendants, was appropriated to the payment of the indebtedness of Forrester, contracted after the dissolution of the partnership of the defendants, instead of being appropriated to the discharge of the judgment held by the plaintiffs against the defendants. On the other hand the defendants contended that this money should have been appropriated to the payment of their indebtedness to the plaintiffs, and if so appropriated, the judgment had been satisfied.

Three exceptions were taken by the plaintiffs which are sufficiently set out in the opinion of the Court. Judgment was given for the defendants and the plaintiffs appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, BOWIE and ROBINSON, J.

William J. O'Brien, for the appellants.

Allen E. Forrester, for the appellees.

BOWIE J., delivered the opinion of the Court.

On the 3d of August, 1867, a judgment by confession was entered in the Court below in favor of the appellants, against the appellees, for $449.39.

A scire facias, quare executionem non, was issued on the 3d of September, 1870; to which the appellees pleaded that the said judgment had been paid and satisfied. At the trial two exceptions were taken by the appellants to evidence offered by the appellees, and a third, to the rejection of the first and fourth prayers, and also to certain oral instructions, given by the Court " sua sponte."

The law is well settled, that in answer to a sci. fa. the defendant cannot set up any matter which might have been relied on as a defence to the original action; otherwise, there would be no end to litigation. 6 Md., 307; 6 Md., 447; Foster's Writ of Sci.

Fa., (L. L.,) 353.

The plea of payment, therefore, could only be sustained by evidence of payments subsequent to the date of the judgment recited in the writ. Both parties seem to concede this position. The contest is, whether the facts offered in evidence are necessarily such as proved payment before the rendition of the judgment; or an agreement to pay, to be executed after the judgment, which has since been consummated by actual receipt of the money by the appellants. If the facts sustained the former view, they were inadmissible; if the latter, they were competent and proper.

The case of McCullough, et al. vs. Franklin Coal Co., cited by the appellees, is not in point; that was a case of accord and satisfaction after judgment rendered, and pending an appeal; which being consummated afterwards, was held to be a good plea in bar to the original judgment. Vide 21 Md., 256.

The evidence set out in the first bill of exception, tended to show that the cause of action, on which the original judgment was rendered, was a promissory note of Forrester, Bankerd & Gildea, for $447; that in the fall of 1866, the firm was dissolved with the usual agreement that one of them should settle all liabilities; subsequently, it was agreed between the appellants and appellees, that Forrester should continue to pay the dues on ten shares of Building Association stock then held by him, until the payments should equal the amount of the appellants' claim, and in case he did not pay the claim otherwise, to transfer the stock in payment; that one of the plaintiffs, John Downey, agreed to the arrangement, and had since told witness, he had received the money on the stock.

No date was given by the witness to the agreement, or the declaration of the appellant, Downey, that he had received the money. The former must have been prior to the judgment; but as the payments were to be made upon calls of the Building Association, from time to time, until they amounted to the sum of the claim, it was for the jury to determine from the circumstances whether the payment to Downey was prior or subsequent to the judgment; if the latter, the evidence was proper to support the plea.

The evidence embodied in the second exception shows the agreement referred to in the first was in fact made, and that at the time of the agreement, $90 had been paid into the Building Association on the...