Dugan v. Howard

• Decision Date: 17 January 1917
• Docket Number: 76.
• Citation: 99 A. 966,130 Md. 114
• Parties: DUGAN v. HOWARD.
• Court: Maryland Court of Appeals

99 A. 966

130 Md. 114

DUGAN v. HOWARD.

No. 76.

Court of Appeals of Maryland

January 17, 1917

Appeal from Circuit Court, Anne Arundel County, in Equity; Jas. R Brashears, Judge.

Suit by Charles A. Howard against Mary Coale Dugan. From a decree striking out her plea of lis pendens, the defendant appeals. Decree reversed, and bill dismissed, without prejudice to the plaintiff to proceed in the prior case.

Argued before BOYD, C.J., and BURKE, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.

James M. Munroe, of Annapolis (Ferdinand C. Dugan, of Baltimore, on the brief), for appellant.

Nicholas H. Green, of Annapolis, for appellee.

STOCKBRIDGE J.

Miss Mary Coale Dugan entered into a contract for the erection of a house in the city of Annapolis with a firm doing business under the name of "De Waard & Sons." The contractor invited bids from the appellee for furnishing and installing the heating and plumbing in the building, and Mr. Howard submitted two bids, one of $331 for the heating, and one $297 for the plumbing. De Waard & Sons endeavored to obtain a reduction in the bids, and succeeded so far as the heating was concerned in securing a reduction from $331 to $311. Upon the bids thus made of $311 and $297, the contracts were awarded on June 18, 1910.

There were entirely two distinct contracts-one at a definite amount for the heating; the other for the plumbing, to be installed in the building about to be erected. De Waard & Sons failed and left a number of their subcontractors unpaid, including Howard.

A bill was subsequently filed in equity by the Farinholt-Meredith Company for the purpose of enforcing a lien claimed by it, to which suit Howard and other lien claimants were made parties. In such proceeding the appellee appeared, and set up the same claim as that involved in the present suit, which earlier case is still pending. Mr. Howard then caused this suit to be brought, to which the appellant appeared and filed a plea of lis pendens. This plea was stricken out by the circuit court for Anne Arundel county, the order reciting that:

"There was no objection in No. 3443 equity (the suit instituted by the Farinholt-Meredith Company) to the claim of Charles A. Howard; so it seems to me that the rights of the parties can be better presented in these proceedings."

The effect of this, therefore, is to leave two suits pending with regard to one and the same claim.

While pleas are not usual in equity suits, they are not unknown and the nature of the defense that may be set up by plea may be stated generally as follows:

"That any facts or combination of facts may be pleaded which without going into the full merits show a good and complete defense to the whole or a part of the bill; e. g., the pendency of another suit in the same jurisdiction between the same parties in regard to the same subject-matter." 10 R. C. L. § 222, p. 455; Way v. Bragaw, 16 N. J. Eq. 213, 84 Am. Dec. 147; Seebold v. Lockner, 30 Md. 133.

And in Mutual Life Ins. Co. v. Brune, 96 U.S. 588, 24 L.Ed. 737, it is said that:

"At law the pendency of a former action between the same parties *** is pleadable in abatement to a second action, because the latter is regarded as vexatious. *** The rule in equity is analogous to the rule at law."

It was therefore error upon the part of the circuit court for Anne Arundel county to have stricken down the plea in this case.

When we come to consider the facts relating to the claim now presented, they are as follows:

As Mr. Howard's contract was not made with the owner, it was incumbent upon him to give notice of his intention to claim a lien, under section 11 of article 63 of the Code, which provides:

"If the contract for furnishing such work or materials, or both, shall have been made with any architect or builder or any other person except the owner of the lot on which the building may be erected, or his agent, the person so doing work or furnishing materials, or both, shall not be entitled to a lien unless, within sixty days after furnishing the same, he or his agent shall give notice in writing to such owner or agent, if resident within the city or county, of his intention to claim such lien."

To comply with this the appellee attempted to serve a notice upon Miss Dugan in the city of Baltimore on December 28, 1910, and being in doubt as to the efficacy of his attempt, on the day following posted a copy of the "notice" upon the premises. The account appended to the notice was as follows:

"Annapolis, Md., December 28, 1910.

Mr. De Waard & Sons, for Mary Coale Dugan's Cottage, Annapolis, Md., to Charles A. Howard, Dr.

Nov. 9, 1910.

To heating house, erected for Mary Coale Dugan as per agreement ..........................................	$331.00
To plumbing house and premises erected for Mary Coale Dugan as per agreement ..............................	297.00	$628.00
	-------
To extra at Dugan's house, as follows:
To changing gaslights
10 ft. 3/8 pipe ........................................	40
10 ft. 1/4 pipe ........................................	38
2 hrs. plumber and helper ............................	1.50	$ 2.28
	--------	--------
		$630.28
Nov. 19th. By cash .....................................................		250.00
	-------
Balance due ....................................		$380.28

This was clearly defective. The amount set out as the claim for the heating is $331, the amount of the...