Gill v. Weller

• Court: Maryland Supreme Court
• Writing for the Court: Bartol, C. J.,
• Citation: Gill v. Weller, 52 Md. 8 (Md. 1879)
• Decision Date: 19 June 1879
• Parties: ANSLEY GILL and James McMahon v. WILLIAM F. WELLER.

52 Md. 8

ANSLEY GILL and James McMahon v. WILLIAM F. WELLER.

Court of Appeals of Maryland.

June 19, 1879.

Appeal from the Superior Court of Baltimore City.

The eighth count of the declaration in this case was as follows:

8. And for that James Clegg drew his order on the defendants to pay to the plaintiff $200.00 on the 10th of September, 1877, and to give his note for the balance due on 40,000 Belgian blocks, at $48 pr. m., and the defendants accepted said order with the condition "when the blocks is delivered," and the said blocks have all been delivered but the defendants refuse to comply with the order, to the great damage and injury of the plaintiff. The defendants pleaded, for a first plea, that they never were indebted as alleged, and for a second plea, that they did not promise as alleged, and for an additional plea, that heretofore, to wit on the 21st of September, 1877, James W. Offutt obtained a judgment in the Circuit Court for Baltimore County, against James Clegg, in and for the sum of $360.67, (three hundred and sixty dollars, sixty-seven cents, with interest from date and costs of suit,) and that subsequently, to wit, upon the 21st of September, 1877, at the instance of the said James Clegg, there issued out of this court an attachment upon said judgment, in accordance with the Act of Assembly, in and for such cases made and provided, to recover the said sum aforesaid of $360.67 as aforesaid, and costs of the said suit, which attachment was laid in the hands of the defendants on the 22nd of September, 1877; and that subsequently on September 18th, 1877, a certain Andrew Logan obtained also in the said Circuit Court of Baltimore County a certain other judgment against the said James Clegg, in and for the sum of $1251.88, with interest and costs, upon the 18th of September, 1877; that the said Andrew Logan, on the 26th of November, (?) 1877, in accordance with the Act of Assembly in and for such cases made and provided, caused an attachment to issue from this honorable court upon the said judgments last aforesaid, for the recovery of the said sums last aforesaid, and costs of said attachment; which attachment was laid in the hands of these defendants on the 27th of September, 1877; and the defendants in fact say, that the said attachments upon the said judgments so as aforesaid, were and are issued to recover condemnation of the sum of money supposed and declared by the plaintiff to be due unto himself, upon the eighth count in his said declaration contained, from these defendants; and these defendants say, that in fact they are not otherwise in anywise indebted to the said plaintiff, than in respect of the said sum sought to be recovered under the said eighth count aforesaid, without this, that they are in anywise, and for any sum of money whatsoever, indebted unto the plaintiff upon the said declaration aforesaid, and that the said attachments are in fact levied to recover condemnation by the said James Offutt and Andrew Logan, creditors of the said James Clegg, of the same sum of money, for the recovery of which as aforesaid the said plaintiff hath declared in his said count number eight.

The plaintiff demurred to the additional plea, and the court sustained the demurrer.

Exception.--The court (Dobbin, J.,) instructed the jury as follows:

If the jury shall find the execution by Clegg of the order given in evidence, and the acceptance thereof by the defendants written thereunder, and shall further find that the whole number of blocks were delivered and accepted by the defendants, and that the defendants afterwards refused to pay for them, the plaintiff is entitled to recover.

And the defendants offered the following prayers:

1. That upon the contract offered in evidence, there is no evidence legally sufficient to have entitled the plaintiff to recover the sum of $200, on the 10th of September.

2. If the jury find from the evidence that the full amount of forty thousand blocks were not delivered on or before the 10th of September, then the plaintiff is not entitled to recover under the eighth count therefor, unless the jury shall find that subsequently the balance of the said stone was delivered with the consent and acquiescence of the defendants, of which consent and acquiescence there is no evidence.

3. That the acceptance of the order offered in evidence is conditional upon the delivery of the whole of said blocks and if the jury shall find that the entire number of forty thousand was not delivered on or before the 10th of September, 1877, then their verdict must be in favor of the defendants.

4. That the contract for the payment of the balance by a note is void for uncertainty, and the plaintiff is not, in this action entitled to recover for any other sum, in respect of which the said note was supposed to have been delivered.

5. If the jury shall find from the evidence that the whole sum of forty thousand blocks were not delivered, then the condition of the accepted order has not taken effect, and the defendants are not liable under the said acceptance, and their verdict must be in favor of the defendants.

6. That there is no evidence upon which the plaintiff is entitled to recover under the first, second, third, fourth, fifth, sixth and seventh counts.

7. That there is no evidence legally sufficient to go to the jury, under which the plaintiff is entitled to recover under the eighth count.

8. That under the order of James Clegg, dated August 28th, 1877, and directed to Gill and McMahon, the plaintiff is...