Heise & Bruns Mill & Lumber Co. v. Goldman
| Decision Date | 08 April 1915 |
| Docket Number | 31. |
| Citation | 94 A. 159,125 Md. 554 |
| Parties | HEISE & BRUNS MILL & LUMBER CO. v. GOLDMAN et al. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore Court of Common Pleas; John J. Dobler, Judge.
"To be officially reported."
Action in assumpsit by Heise and Bruns Mill & Lumber Company against George C. Goldman, David M. Newbold, and Newbold & Sons. Judgment for plaintiff against defendant Goldman by default and judgment for the other defendants, and plaintiff appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
J Royall Tippett, of Baltimore (Richard B. Tippett and Richard B. Tippett & Son, all of Baltimore, on the brief), for appellant.
Arthur L. Jackson, of Baltimore (D. M. Newbold, Jr., of Baltimore on the brief), for appellees.
There is but one exception in this record, and that arises from the action of the court below in granting a prayer at the conclusion of the plaintiff's testimony, directing a verdict for the defendants, upon the ground that there had been offered no evidence legally sufficient to entitle the plaintiff to recover.
The action was in assumpsit and upon the common counts, and was for the purpose of collecting an unpaid balance due the appellant for building materials. The defendant George C. Goldman, a building contractor, filed a special plea of discharge in bankruptcy, to which, no replication having been filed, judgment by default whereof was entered for him. It was admitted in open court by the appellees that David M. Newbold and Newbold & Sons, Inc., were, for the purposes of the case, to be considered identical.
The appellant produced George C. Goldman, who testified: That in the spring of 1909 he entered into a verbal agreement with David M. Newbold to build, on land belonging to Mr. Newbold in West Baltimore, several houses. By this agreement the title to the houses was to be transferred to Goldman, subject to a ground rent of $36 per house for some of the houses and $60 as to others; he was also to receive a bonus of $300 per house on some of the houses and $400 per house on others, Mr. Newbold was also to loan him $500 per house on some of the houses, and $500 per house on the others, if he should need it. After having made the agreement he asked for bids from the materialmen, representing that the properties were to be in his name, subject to ground rents. That before the appellant entered into a contract with him for materials the president of the appellant corporation had Mr. Newbold sign a paper guaranteeing the payment of its account to the extent of 50 per cent. on the first lot of houses to be built and 66 2/3 per cent. on the second lot. The guaranty was as follows:
The paper guaranteeing 66 2/3 per cent. is to the same effect as the above. The bonus on each of the houses was paid by Mr. Newbold. The amounts under the 50 per cent. and 66 2/3 per cent. guarantees were also paid by Mr. Newbold and charged against the amounts agreed to be loaned by him on the houses. So that at the time the suit was brought there was nothing due from Mr. Newbold to Mr. Goldman under the agreement between them, nor anything due the appellant by Mr. Newbold by reason of his guarantees. The bonus money was used by Mr. Goldman to pay off his weekly pay roll, including $25 per week for himself. The loan money was used to pay the materialmen, sometimes directly paid by Goldsman, at others by Newbold.
It was proved that leases for all the properties were made by Newbold & Sons, Inc., to George M. Maisel, a clerk in the office of Mr. Newbold, by four separate leases, the first dated July 9, 1909, and the last June 20, 1910; that none of this property was ever conveyed to George C. Goldman. Mr. Goldman testified that he first learned of the first lease by reading of it in the papers, and went to Mr. Newbold telling him that since he had bought all the material the property should be in his name. Mr. Newbold replied to this, "It is all right as it stands." Under cross-examination the witness testified that he understood this lease was simply formal, and never objected to the subsequent ones.
A large number of the houses were sold; the negotiations for the sales in some instances being carried on by Mr. Goldman and in others by Mr. Newbold. Several houses were taken by different materialmen in settlement of their accounts. The money received from the sales was credited on the account of Mr. Goldman. In February, 1912, a voluntary petition in bankruptcy was filed by Mr. Goldman, and in the list of unsecured creditors was the appellant for the amount due on a promissory note, and among the schedule of assets, his interest in 16 of the houses built under the agreement in this case, being all of those unsold at that time.
John F Bruns, president of the appellant corporation, testified that after Mr. Goldman had interviewed him as to furnishing materials for the construction of the houses, he visited Mr. Newbold for the purpose of having him guarantee the payment of the whole account, having with him a prepared paper to that effect. Mr. Newbold refused to guarantee the whole account, but limited his liability to the extent of 50 per cent. on the first transaction and subsequently 66 2/3 per cent. on the second transaction. This guaranty was satisfactory to Mr. Bruns, for he thought the leases were to be in the name of Mr. Goldman, and that fact would furnish ample protection to him for any amount not covered by the guaranty. Near the time of the completion of the second lot of houses, he learned from Goldman that the leases were in the name of Mr. Maisel, and went to Mr. Newbold and complained of the leases not being in the name of Goldman, and was told by Mr. Newbold that whenever a house was sold he would get the pro rata of his bill. At this time he refused to furnish any more material, unless Mr. Newbold paid the whole amount of the subsequent bills. This was agreed to and...
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