Frank v. Miller

• Decision Date: 02 July 1873
• Parties: NISSON FRANK v. HENRY C. MILLER and THEODORE K. MILLER.
• Court: Maryland Court of Appeals

38 Md. 450

NISSON FRANK v. HENRY C. MILLER and THEODORE K. MILLER.

Court of Appeals of Maryland

July 2, 1873

APPEAL from the Superior Court of Baltimore City.

This suit was brought by the appellees, surviving partners of the firm of Daniel Miller & Co., against the appellant. The plaintiffs, in addition to the money counts, declared as follows:

6. For that, whereas, on or about the 18th of February 1871, certain parties, trading at Selma, Alabama, as Katzenberg & Co., were justly and bona fide indebted to said plaintiffs on two promissory notes, for $191.37 each, dated on the 13th day of May, 1870, drawn in favor of Daniel Miller & Co., and payable six and nine months after date respectively, at the National Exchange Bank of Baltimore; the said defendant, in consideration that the said plaintiffs agreed to divide said debt in four notes, at three, six, nine and twelve months, by an agreement in writing, signed by himself, promised and contracted to settle them. That giving faith and credit to the said promise of the said defendant, in form aforesaid made, they did divide said debt into four notes, as aforesaid, but said defendant has altogether refused to pay said notes when they respectively matured, and does still refuse to pay them.

7. For that, whereas, certain parties, trading at Selma, Alabama, as Katzenberg & Co., were justly and bona fide indebted to said plaintiffs in the sum of $382.74, on two promissory notes for $191.37 each, drawn by said Katzenberg & Co., on the 13th day of May, 1870, in favor of Daniel Miller & Co. payable, respectively, six and nine months after date, at the National Exchange Bank of Baltimore, which were not paid at maturity; and afterwards, to wit, on or about the 18th of February, 1871, the said two promissory notes being then still due and unpaid, the said defendant, in consideration that the plaintiffs agreed to divide said debt into four notes, payable, respectively, in three, six, nine and twelve months, agreed in writing, signed by himself, to settle them whereupon the said plaintiffs did divide said debt into four notes, by drawing four notes, dated on or about said 18th of February, 1871, drawn in favor of said defendant, the signature of the maker being left in blank, to be signed by said Katzenberg & Co., and that said plaintiffs delivered said notes, drawn in manner aforesaid, to said defendant, to be signed by said Katzenberg & Co., and endorsed by said defendant, and to be returned to said plaintiffs; whereupon said defendant then stated, and at divers times since has stated, his assent to the form in which said notes were drawn, and then and there, and at divers times afterwards promised that said notes should be signed and endorsed as aforesaid; and said four notes were never returned to said plaintiffs; and when they became due and payable, according to their said tenor and effect, although payment was then and at divers times since has been demanded, were not paid, nor have they, or any of them, yet been paid by said Katzenberg & Co., or by any one for them.

8. For that, in consideration that the plaintiffs would forbear to levy an attachment on the goods of Katzenberg & Co., of which the defendant claimed to have control by bill of sale or otherwise, for two notes due by Katzenberg & Co. to the plaintiffs, both dated May 13, 1870, payable in six and nine months after date respectively for $191.37, each payable to the order of the plaintiffs, the defendant promised the plaintiffs to settle said debt, provided the said plaintiffs would divide said debt into four notes, which the plaintiffs accordingly did, but the said defendant has not paid said debt or any part thereof.

The defendant pleaded that he never was indebted, and never promised as alleged; and issues were joined.

Exception.--The plaintiffs offered the following prayers:

1. If the jury believe from the evidence that certain parties trading at Selma, Alabama, as Katzenberg & Co., were indebted to the plaintiffs in this cause in the sum of $382.74, on the two promissory notes for $191.37 each, given in evidence, and that the defendant in this cause, by an agreement in writing, signed by himself, contracted to settle said debt, on condition that the said plaintiffs should divide said debt into four promissory notes, at three, six, nine and twelve months respectively; and if they further believe from the evidence, that the plaintiffs did divide said debt into said four notes, and neither the said Katzenberg & Co., nor said defendant, nor any one for them or him, has paid the debt represented by said four notes, or any part thereof, then their verdict must be for the plaintiffs.

2. If the jury believe from the evidence that Katzenberg & Co., were indebted to the plaintiffs on the two promissory notes given in evidence, and that the plaintiffs applied to the defendant for the payment thereof, and threatened, if they were not paid, to levy an attachment on certain goods which Katzenberg & Co. had, by bill of sale, conveyed to the defendant, and that, for the purpose of preventing such attachment, the defendant agreed, if plaintiffs would divide the debt represented by said two notes into four notes, at three, six, nine and twelve months respectively, to settle them, and that the plaintiffs divided said debt into four notes as aforesaid, and delivered the same to the defendant, but defendant has not paid the same, or any part thereof, and that Katzenberg & Co. have not paid said two promissory notes due by them, or any part thereof, then the plaintiffs are entitled to recover.

And the defendant offered the following prayers:

1. That the memorandum mentioned in the evidence in this case is not a sufficient memorandum, under the Statute of Frauds, to enable the plaintiffs to recover.

2. If the jury believe from the evidence in the cause, that the agreement referred to was an engagement on the part of the defendant simply to endorse and not to obtain the signature of the makers to the four notes mentioned in evidence, and the said defendant has always been willing and ready to endorse the said four notes, but has been prevented by the failure of the said Katzenberg & Co. to sign said notes, that then the verdict must be for the defendant.

3. That if the jury believe from the evidence that the engagement of the defendant was to endorse the said four notes, and the defendant has failed to comply with his engagement, that then they can find only such damages as the said plaintiffs have actually suffered, and only that which has been proved.

4. That there is no evidence in the cause legally sufficient to enable the plaintiffs to recover under any one of the counts in the declaration, and the verdict of the jury must therefore be for the defendant.

The Court, (DOBBIN, J.,) granted the prayers of the plaintiffs and rejected those of the defendant. The defendant excepted. The jury rendered a verdict for the plaintiffs for $407.34, and judgment was entered accordingly. The defendant appealed.

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

M. R. Walter, for the appellant.

The appellant's first prayer should have been granted. The memorandum in this cause is not such a one as is required by the Statute. It must contain all the essentials to a complete agreement, viz: the subject-matter, the parties, the terms and the consideration, and these must be expressed so clearly, definitely, and with such certainty that it may be understood without recourse to parol to show the intention of the parties. Browne on Stat. of Frauds, sec. 371; 2 Kent's Com., ( marg.,) 511; Nichols vs. Johnson, 10 Conn., 198; Bailey & Bogert vs. Ogden, 3 Johns., 419; Salmon Falls Manuf. Co. vs. Goddard, 14 Howard, [ U. S.,] 454; Adams vs. McMillan, 7 Porter, [ Ala.,] 80, 81; Blair vs. Snodgrass, 1 Sneed, [ Tenn.,] 25; Sherburne vs. Shaw, 1 N. H., 129; Parkhurst vs. Van Cortlandt, 1 John. Ch., 278.

And not only must the names of the parties appear in the writing, but the writing itself, must clearly disclose the character in which they appear, whether as promisor or promisee, as vendor or vendee, &c. Vandenbergh vs. Spooner, 1 Law Reports, [ Exchequer,] 316; Williams vs. Lake, 1 Law Times, [ N. S.,] 57; Sherburne vs. Shaw, 1 N. H., 160, 161; Browne on Stat. of Frauds, secs. 372, 374; Bailey & Bogert vs. Ogdens, 3 John., 419; Salmon Falls Manuf. Co. vs. Goddard, 14 How., 458-9-60; Carregan vs. Richards, 15 Law Reporter, N. S., 252.

The memorandum offered by the appellees in evidence fails to fulfil these requirements. It is extremely indefinite and obscure. It is impossible to ascertain from the paper to whom the promise was made, or that Katzenberg & Co. had anything to do with the transaction. The names of Daniel Miller & Co. (the appellees,) and Katzenberg & Co. do not appear in any part of the writing. There is nothing to indicate the subject-matter. It is utterly impossible to ascertain what is meant, and no effect can therefore be given to the paper. The entire agreement, or memorandum of the agreement must be in writing, and no paper can be introduced as a part of the memorandum, unless there is a reference in the memorandum to such paper, and this reference must be express. Blair vs. Snodgrass, 1 Sneed, (Tenn.,) 26, 27; Boydell vs. Drummond, 11 East., 156, 157, 158; Salmon Falls M. Co. vs. Goddard, 14 How., 456, 458; Browne on Statute of Frauds, sec. 375; Sanborn vs. Flagler, 9 Allen, 477; Taney vs. Bachtell, 9 Gill, 210, 211; 2 Kent's Com., 511, (marg.)

The reference must be so clear that there will be no possibility of one paper being substituted for another. Waul vs Kirkman, 27 Miss., (5 Cush.,) 828, 829; 1 Sugden on Vendors, 111, (sub-sect. 32,) Edition 1857; Jacob vs. Kirk, 2 M...