Erdman v. Trustees of Eutaw Methodist Protestant Church

• Decision Date: 09 January 1917
• Docket Number: 34.
• Parties: ERDMAN v. TRUSTEES OF EUTAW METHODIST PROTESTANT CHURCH.
• Court: Maryland Court of Appeals

99 A. 793

129 Md. 595

ERDMAN v. TRUSTEES OF EUTAW METHODIST PROTESTANT CHURCH.

No. 34.

Court of Appeals of Maryland

January 9, 1917

Appeal from Superior Court of Baltimore City; James M. Ambler Judge.

"To be officially reported."

Action by Trustees of the Eutaw Methodist Protestant Church against Harry S. Erdman, individually and as surviving partner of F S. Erdman & Son. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff's fourth prayer is as follows:

"The plaintiff prays the court to instruct the jury should it find from the evidence in this case that the defendant Harry S. Erdman, on December 28, 1910, signed and delivered to the plaintiff the promissory note for $500 sued on in this case, and should the jury further find that the said promissory note was given to and accepted by the plaintiff in payment of a subscription for that amount made by the said Francis S. Erdman, deceased, and that upon the faith of such subscription the plaintiff had incurred obligation to third parties, and that said note is still unpaid, and if the jury shall believe from all the evidence in the case that at the time of the making of the note upon which this suit is brought, the defendant, Harry S. Erdman, held himself out to the plaintiff or to its treasurer, Frederick G. Reinicker, as a co-partner in the firm of F. S. Erdman & Son, and the said plaintiff of its treasurer had reasonable grounds to believe that he was such partner of the firm, which he believed so to exist, and had no knowledge to the contrary, then the plaintiff is entitled to recover against the defendant the amount of said note, with interest from the date thereof to date of verdict, less such sum or sums as the jury may find to have been paid thereon, notwithstanding the jury may find that the said Harry S. Erdman was not, in fact, a partner in said firm of F. S. Erdman & Son by any contract of partnership."

Argued before BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

J. Edgar Gans and Vernon Cook, both of Baltimore, for appellant.

Thomas Burling Hull, of Baltimore, for appellee.

BRISCOE J.

This suit is brought by the plaintiff against the defendant, individually and as surviving partner of F. S. Erdman & Son to recover on the following described promissory note:

"Baltimore, December 28, 1910.

"Four years after date I promise to pay to trustees of Eutaw Methodist Protestant Church the sum of five hundred dollars ($500) with interest. [Signed] F. S. Erdman & Son."

Indorsed:

"Interest paid April 1st, 1912. $30.00."

The declaration, after declaring on the six common counts in assumpsit, by the seventh count alleges:

And for that the defendant Harry S. Erdman and Francis S. Erdman, now deceased, co-partners trading as F. S. Erdman and Son, during the lifetime of the said Francis S. Erdman on the 28th of December, 1910, by their promissory note, now overdue, promised to pay to the plaintiff five hundred dollars, with interest four years after date, but did not pay the same or any part thereof, except one year's interest thereon paid by the defendant on April 1, 1912.

The defendant pleaded to the declaration the general issue pleas and also three special pleas. The third plea denied the partnership; the fourth, that the signature, "F. S. Erdman & Son," on the promissory note mentioned in the declaration, while in the handwriting of this defendant, was written by him at the request of his father, Francis S. Erdman, now deceased, and that said signature was made by this defendant for and on behalf of said Francis S. Erdman, and was not intended to bind this defendant individually, there being no copartnership between the defendant and his father and the name, "F. S. Erdman & Son" being the name under which said Francis S. Erdman, conducted his individual business, and the fifth plea, that there was no valuable consideration whatsoever for the giving of the promissory note on which the suit was brought. The case was tried upon issue joined upon the defendant's first and second pleas, and upon issue joined on the plaintiff's replication to the defendant's third, fourth, and fifth pleas, as set out in the record. The judgment being for the plaintiff for the sum of $632.50, the defendant has appealed.

The questions for our consideration are presented by a single exception, and that is to the action of the court in granting the plaintiff's fourth prayer, and in rejecting the defendant's prayers. The defendant's special exception to the plaintiff's first and second prayers need not be considered because these prayers were refused by the court. The same questions, however, are raised by the defendant's second and third prayers, and will be disposed of here.

The defendant sought by these prayers (the second and third) to withdraw the case from the consideration of the jury, upon the ground: First, that there was no evidence in the case legally sufficient to show a partnership, as alleged in the declaration, between the father and son; second, that there was no evidence legally sufficient to show that the plaintiff, in accepting the note on which the suit was brought, relied upon the belief that the defendant was a member of the firm of F. S. Erdman & Son. These prayers were properly refused, because they involved and contained questions of fact, to be submitted to the jury upon proper instructions from the court, and to be ascertained by the jury under all of the evidence in the case, and on the testimony in this case as set out in the record could not have been withdrawn by the court from their consideration, as was attempted by these prayers. Thomas v. Green, 30 Md. 1; Whiting v. Leakin, 66 Md. 255, 7 A. 688; Fletcher v. Pullen, 70 Md. 205, 16 A. 887, 14 Am. St. Rep. 355; Johnson v. Crichton, 56 Md. 108.

The legal propositions in the case are presented by the defendant's rejected first prayer and by the plaintiff's granted fourth prayer, and may be resolved into two: First, whether there was sufficient consideration for the making or giving of the promissory note; second, whether the note sued on was so executed as to be binding on the members of the firm of F. S. Erdman & Son.

By the defendant's first prayer the court was asked to rule as a matter of law that there was no evidence legally sufficient to show any consideration for the making or giving of the promissory note on which the suit was brought, and under the pleadings and evidence the verdict must be for the defendant. This prayer was properly rejected. The consideration for the note was a subscription contract of $500 which had been made by Francis S. Erdman, the father, with the trustees of the Eutaw M. P. Church for the purpose of paying off a building debt, which had been incurred for the erection of a new church building. Francis S. Erdman was a member of the board of trustees, and also a member of the building committee, of the church. The subscription contract was made on the 31st of October, 1909, and entered upon the books of the church. The trustees subsequently borrowed the sum of $2,000 on this and other subscriptions to the church to pay off their indebtedness incurred for the erection of the church building. The Erdman subscription was not paid in cash, but was fully recognized by him, before the execution of the note by the payment on the 7th day of November, 1910, of one year's interest thereon. Subsequently, on December 28, 1910, the note in question and here sued on was executed at the house of the father, and delivered to F. G. Reinecker, the treasurer of the church. The testimony shows that the note was drawn by the defendant, the signature, "F. S. Erdman & Son," was written and attached by him, and the note was delivered as executed, at the request of the father, by the assent of the defendant. In the presence of the father. The witness Reinecker, treasurer of the church, testified as follows:

"I was sent for and told to come up, that Uncle Frank wanted to see me, and I went there and up in his room and Frank Erdman said, 'I have this note for you for the church.' I said, 'All right,' and his son went to the desk and got the note out and gave it to me, and I looked over the note and I saw how it was signed, and I said: 'Uncle Frank, do you know how it is signed?' He said, 'Yes; I had it signed that way purposely.' Harry Erdman was present and said nothing. He handed me the note. The note was given in payment of a subscription that Francis S. Erdman made on October 31, 1909, the date the new church was opened."

He also testified on cross-examination:

"I knew that the subscription of the father, Francis S. Erdman, was an individual subscription, and that his son originally had nothing to do with it. When the note was handed me I observed it was signed 'F. S. Erdman & Son.' I was surprised at his giving it in that shape, as I expected an individual note. I called attention to the fact that it was signed 'F. S. Erdman & Son,' and he said that was all right. He did not give me any reason for that. The note was not signed while I was in the room. It was ready for me in a desk when I arrived. I endeavored to collect interest when the year was up. We were paying interest, and we collected our interest every year so as to have one balance the other. I went to Harry Erdman for this interest, after his father's death; gave him a bill for it. I said: 'Harry, here is a bill for the

...