Grandberg v. Bernard

• Decision Date: 12 April 1945
• Docket Number: 36.
• Parties: GRANDBERG v. BERNARD.
• Court: Maryland Court of Appeals

42 A.2d 118

184 Md. 608

GRANDBERG v. BERNARD.

No. 36.

Court of Appeals of Maryland

April 12, 1945

Appeal from Circuit Court of Baltimore City; E. Paul Mason, Judge.

Bill in equity by Norman Bernard against Irving B. Grandberg for an accounting under an agreement. From an order overruling a demurrer to the bill, defendant appeals.

Order reversed and bill of complaint dismissed.

Samuel J. Friedman and Irving B. Grandberg, both of Baltimore, for appellant.

L Wethered Barroll, of Baltimore (Ralph Robinson, of Baltimore on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN HENDERSON, and MARKELL, JJ.

GRASON Judge.

Appellee was engaged in conducting an agency for the collection of mercantile claims, and needed the services of an attorney at law. He apparently controlled the listing of the name of an attorney for the Baltimore area, in two publications of nation wide circulation among forwarders of mercantile claims. In September, 1930, he entered into an agreement with appellant, a lawyer, whereby appellant would render legal services to appellee and appellee would procure the listing of appellant's name as an attorney at law in the two publications. The annual expense of maintaining the listing of appellant's name in the publications was to be borne equally by the parties, and the commission earned from the collection of claims received through the listing of the appellant's name in these publications was to be equally divided. Appellee secured the listing of the appellant's name in the publications, paid one half of the annual expense thereof, and the agreement continued in force and effect for over ten years. During this period, and as a part of the agreement, appellant turned over to appellee the claims he received, and appellee endeavored to collect same. In the event he was not successful in collecting a claim he returned same to the appellant, who instituted suit thereon and conducted the legal proceedings to a conclusion. The listing in one of these publications was discontinued, but, at the time, it was agreed if the listing was renewed the original arrangement as to the same would automatically revive. Later on the listing was renewed.

This arrangement was profitable and appellee states his share of the profits over the years approximated $1200.00 annually. He charges, in the month of July, 1941, the appellant breached this agreement by refusing: 1. To allow him to pay one half of the annual expense of the listing of appellant's name in the publications; 2. To pay him one half of the annual profits of the venture, and 3. To turn over to him any accounts for collection, although he is and has always been ready, willing and able to perform all of his duties and obligations under the agreement. He states that appellant has refused to permit him to participate in any way in this business, or to ' account to him for such amounts as are properly due' to him 'since July, 1941'.

On August 21, 1944 (more than three years after July 1941) appellee filed his bill of complaint against the appellant in the Circuit Court of Baltimore City. Its material allegations have been narrated above. He prays that appellant answer the bill and 'discover under oath the income he has received since July, 1941, for all claims that have come into the hands of said Respondent (appellant) by reason of Respondent's name being inserted in the' two publications 'to the present time', and for general relief.

The appellant demurred to the bill, and from an order of the Chancellor overruling the demurrer, with leave to answer in thirty days, this appeal was taken. The appellant assigns several reasons in support of his demurrer, the second thereof being as follows: 'That under the allegations of said Bill of Complaint, the alleged arrangement was terminated over three years prior to the filing of the Bill of Complaint'. As we are of opinion this reason is conclusive on demurrer, it will not be necessary to consider the other matters which appellant contends support the demurrer.

It is apparent from the allegations of the bill that appellee does not claim there is any money due him from appellant prior to July 1941. At that time appellant completely severed his business relations with appellee regarding the collection of mercantile claims. For more than three years appellee did nothing at all to redress the alleged breach of the arrangement or contract set up in his bill of complaint. And in his bill he sets up no reason or excuse whatever for the delay. It is an equitable principle that mere delay will not bar the prosecution of a right, unless it appears that the delay 'works a disadvantage to the party against whom relief is sought.' Curtis v. Maryland Baptist Union Ass'n, 176 Md. 430, 435, 5 A.2d 836, 839, 121 A.L.R. 1516. On the other hand, if the remedy sought in equity is analogous to a remedy cognizable at law, and the statute of limitations prescribes a time within which the legal action must be instituted, equity will follow the law and bar the action. If this were not so a litigant could circumvent the statute by by-passing the law courts and bring his case in equity. This principle has been decided by this Court, and for years has been the settled law of this State.

An action of account is cognizable at law. Pleading & Practice Poe (Tiffany's Ed.) Vol. 1, secs. 51, 318, 320; Wisner v. Wilhelm, 48 Md. 1; Flack v. Gosnell...