Furst v. Carrico

• Decision Date: 19 November 1934
• Docket Number: 2.
• Citation: 175 A. 442,167 Md. 465
• Parties: FURST ET AL. v. CARRICO ET AL.
• Court: Maryland Court of Appeals

175 A. 442

167 Md. 465

FURST ET AL. v. CARRICO ET AL.

No. 2.

Court of Appeals of Maryland

November 19, 1934

Appeal from Circuit Court, Cecil County; Thomas J. Keating and J Owen Knotts, Judges.

Action by Frank E. Furst and Fred G. Thomas, copartners trading as Furst & Thomas, against Grover H. Carrico and others. Judgment was entered for defendants Grover H. Carrico and H L. Harvey on demurrer to plaintiffs' replications, and plaintiffs appeal.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and SLOAN, JJ.

Albert D. Mackey and James W. Hughes, both of Elkton, for appellants.

Edward D. E. Rollins, of Elkton (Joshua Clayton, of Elkton, on the brief), for appellees.

BOND Chief Judge.

The appellants, sellers of goods to Robert Glenn Carrico on credit, sued the appellees as guarantors of payment. The guaranty was alleged to be in writing. The buyer, too, was made a party defendant, but the record contains no subsequent proceedings referring to him, and it has been stated in argument that a judgment by default was taken against him. Each of the supposed guarantors filed general issue pleas that he never promised as alleged and never was indebted as alleged, and on these pleas issue was joined. A third plea filed by each denied execution or signature of the writing, and to these pleas the plaintiffs filed special replications alleging that even if the defendants did not execute or sign as alleged, still, after they had been solicited to do so, the writing was delivered with their names attached, they were notified by registered letters that the credit would be given and the goods sold and delivered on the faith of the supposed guaranty, goods were accordingly sold and delivered to the buyer, and the supposed guarantors were twice notified of his failure to pay in full, yet had made no answer to any notification; and on this the plaintiffs contended that the defendants were estopped now to deny their signatures. Demurrers to the replications were sustained, and judgment for defendants on the demurrers were entered.

It was permissible to appeal to this court without awaiting trial of the issues joined on the first and second pleas, because in actions on alleged guaranties the denials of the signatures to the writing, standing uncontested in the absence of any pleading over, constituted complete bars to further prosecution. Wyman v. Gray, 7 Har. & J. 409; Boehm v. Baltimore, 61 Md. 259, 265; Nelson v. Chesapeake Co., 159 Md. 20, 22, 149 A. 442; 1 Poe, Pleading, § 706.

The ruling on the demurrers could not be supported on the ground that estoppels in pais cannot be pleaded specially. Where such estoppel "is relied upon to avoid a defense set up in a special plea, it too must be specially pleaded." Bitting v. Home Insurance Co., 161 Md. 56, 60, 155 A. 329, 331.

It is not alleged that the defendants derived any benefit from the forgery of their names, that the buyer, who brought the signed guaranty to the sellers, was the defendants' agent for any purpose, or that there was any dealing or relationship between the parties which might compel the defendants, by a legal duty, to repudiate the signatures of which the plaintiffs wrote them. And if the estoppels contended for should exist, it must be because under the circumstances the alleged silence of the defendants, or their failure to answer, naturally meant that the defendants assented to the statements that they had guaranteed the buyer's payments, and prejudice resulted to the sellers from reliance on the apparent assent, as must have been anticipated. Commitment of the defendants by their silence, and reliance on it by the plaintiffs, would raise the estoppel. Retraction could not then be permitted. First Nat. Bank v. Wolfe, 140 Md. 479, 117 A. 898, 25 A. L. R. 172; Eareckson v. Rogers, 112 Md. 160, 169, 75 A. 513; Carroll v. Manganese Safe Co., 111 Md. 252, 258, 73 A. 665; Carmine v. Bowen, 104 Md. 198, 64 A. 932, 9 Ann. Cas. 1135; note, 25 A. L. R. 177.

To establish prejudice or injury to the sellers, the allegations are sufficient. Those in the declaration that sales under the contract were made between the date of the contract and the date eighteen months later may signify that one or more sales were made before the defendants had had a reasonable time to reply to the letters of notification if they had wished, and therefore without an appearance of acquiescence by them to be relied on, so far as those sales are concerned. And to the extent of any default in payment for goods sold, then there may have been no prejudice to the plaintiffs from the failure to answer. Ewart, Estoppel, 132. But in sales subsequently made, there might have been injury from the mistaken reliance. Any subsequent prejudice to the creditors by their reliance prior to their discovery of the forgery would meet the requirement. Eareckson v. Rogers, 112 Md. 160, 169, 75 A. 513; Andrews v. Clark, 72 Md. 396, 437, 20 A. 429; Hambleton v. Central Ohio Co., 44 Md. 551, 561; Cunningham v. First Nat. Bank, 219 Pa. 310, 68 A. 731, 123 Am. St. Rep. 657; Brown v. People's Nat. Bank, 170 Mich. 416, 136 N.W. 506, 40 L. R. A. (N. S.) 657; Ogilvie v. West Australian Corp., [1896] A. C. 257.

Whether failure to respond to a statement or charge, oral or written does amount to an acquiescence in it, and an admission of the fact, is a question that arises in a variety of cases, civil and criminal, on offers of evidence or otherwise. And the answer depends in each case on the facts of that case. 2 Wigmore, § 1073; notes, 25 L. R. A. (N. S.) 542, 564, 567; 42 L. R. A. (N. S.) 889, 893; 8 A. L. R. 1163. Mere silence, standing alone, does not have that effect. On the facts it must appear that the statements or charges, if wrong, would naturally, or with such great probability, have brought contradiction, that absence of contradiction gave assurance of truth. And the fact that the failure to contradict was a failure to answer letters has an important bearing on the question of interpretation and effect to be given. "Such evidence is of a lighter character than silence when the same facts are directly stated to the party. Men use the tongue much more readily than the pen." Fenno v. Weston, 31 Vt. 345. And the duties of strangers to transactions are duties of forbearance, not of...