Fisher v. Diehl

• Decision Date: 22 November 1901
• Citation: 50 A. 432,94 Md. 112
• Parties: FISHER v. DIEHL.
• Court: Maryland Court of Appeals

50 A. 432

94 Md. 112

FISHER v. DIEHL.

Court of Appeals of Maryland

November 22, 1901

Appeal from circuit court, Frederick county; John C. Motter, Judge.

Action by Frederick W.E. Diehl against Mrs. Annie E. Fisher. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, and SCHMUCKER, JJ.

Samuel A. Lewis, for appellant.

Baker Johnson, for appellee.

SCHMUCKER J.

This appeal brings up for review the action of the court below in sustaining demurrers to one of the appellant's pleas and in admitting in evidence a certain promissory note. The note in question is as follows: "$95. Frederick, Md., Oct 13, 1900. Two months after date we jointly and severally promise to pay to the order of F.W.E. Diehl ninety-five dollars, for value received. Negotiable and payable at the Citizens' National Bank of Frederick, Md. William F Fisher. Annie E. Fisher. F.W.E. Diehl. [ U.S. Revenue Stamp.]" The appellee, as plaintiff below, sued the appellant in assumpsit. The declaration contained the usual common counts, and also two special counts; the first charging the appellant as maker of the $95 note, and the second charging her as purchaser of goods to the extent of $61.01. The appellant demurred to the second special count and pleaded to all of the other counts "that she never promised as alleged," and "that she never was indebted as alleged." To the first special count she also filed a special plea averring that she signed the note along with the plaintiff, as cosurety for her husband, who had since died, and that she was liable to the plaintiff only by way of contribution, and to the extent of but one-half of the amount of the note. The court sustained her demurrer to the second special count, but, as the plaintiff did not appeal, the action of the court in that respect is not before us for review. The appellee, as plaintiff, joined issue upon all of the pleas except that of nil debit, to which he demurred, and the court sustained his demurrer.

The learned judge below was, in our opinion, in error in sustaining the last-mentioned demurrer, because the plea of "never was indebted as alleged," which is the modern form of nil debet, although originally applicable only to an action of debt, has become, by long usage, in this state an admissible form of denial in assumpsit also. Act 1856, c. 112, which was passed to simplify the rules and forms of pleadings and practice in actions at law, contained among other things, forms of declarations and pleas to be used in actions on contract. The plea "that he was never indebted as alleged" appears at the head of the list of pleas, and it is followed by the words. "This plea is applicable to declarations numbered 1 to 12." By reference to the forms of declaration on contracts appearing in the act, Nos. 1 to 12 are found to be the common counts in assumpsit. In section 23 of article 75 of the Code, "that he was never indebted as alleged, or that he never promised as alleged," stands first among the forms of pleas declared to be...