Horner v. Frazier
| Decision Date | 10 March 1886 |
| Parties | HORNER AND ANOTHER, EX'RS, v. FRAZIER. |
| Court | Maryland Court of Appeals |
Appeal from the court of common pleas.
Wm. A. Hammond and J. J. Wade, for appellant.
H P. Jordan and R. E. Jordan, for appellee.
The declaration in this case, after setting out that certain land of the plaintiff was about to be sold at trustee's sale alleges "that the defendant proposed to the plaintiff that the plaintiff should become the purchaser of the said land at the sale, and promised the plaintiff that if he would confess judgment in favor of the defendant for the amount of a certain unfounded claim the defendant then had against the plaintiff upon a certain joint and several promissory note dated the tenth of August, 1869, for the sum of $870, payable one day after date, to the order of the defendant, which note had been theretofore made by a certain Joseph Bromel and the plaintiff, who joined therein for the accommodation only of said Bromel, and as his surety, and against said note, and any action of the defendant thereon, the plaintiff then and there had a just and perfect defense, that he, the said defendant, in consideration thereof, would advance and supply to the plaintiff all the money required to meet the payments of the purchase money under such trustee's sale, upon the understanding that the money which should be so advanced should be returned to the defendant by the plaintiff after the plaintiff had effected a sale of the land so to be bought, which subsequent sale the defendant represented to the plaintiff that he could easily make at a large advance upon the price at such trustee's sale; and the plaintiff, induced by the persuasion of the defendant, and relying upon his promise aforesaid, and believing that the expected profits from such resale would exceed the amount of the judgment so to be confessed, accepted the said proposal of the defendant, and consented and agreed to purchase said land at said trustee's sale upon the understanding aforesaid, and did in fact become the purchaser at said trustee's sale for the price of $10,872.40." The declaration then avers the full compliance on the part of the plaintiff with his part of the contract, and avers a failure on the part of the defendant to keep his engagement therein, whereby the plaintiff claims to be greatly damaged. There is also a count for goods bargained and sold, for work and materials provided, and for money found to be due on accounts stated between them.
After having pleaded "never indebted," and that he never promised as alleged, the defendant filed two additional pleas, varying only in form, by which it was alleged that the promise was not in writing. The demurrer to these pleas presents the first question for determination.
The circuit court sustained the demurrer, and in so doing we think was clearly right. In Ecker v. Bohn, 45 Md. 287, and Ecker v. McAllister, Id. 302, it was decided that it was not necessary to allege a promise, to which the statute of frauds applied, to be in writing; the court saying: "If it appear in the proof at the trial to be in writing, it is sufficient." In holding the statute to affect the proof only, the court observed and followed the well-established rule of pleading, that "where an act is valid at common law, but is regulated as to the mode of performance by statute, it is sufficient to use such certainty of allegations as was sufficient before the statute." Steph. Pl. 295, 330; Spencer v. Pearce, 10 Gill & J. 295. The pleas were an argumentative answer to the declaration, and asserted nothing which was not cognizable under the general issue already pleaded, and were therefore demurrable. Chit. Pl. 552; Reade v. Lamb, 6 Exch. 130; Leaf v. Tuton, 10 Mees. & W. 393; Hayselden v. Staff, 5 Adol. & E. 160. Such defect formerly could only be attacked by special demurrer, which is no longer allowed here, having been abolished by the Code, and now it is admissible to raise the question under general demurrer, as here allowed. Miller v. Miller, 41 Md. 623. The question might have been raised upon motion to strike out the plea; but the decision of Miller v. Miller has been regarded as fully settling the question in Maryland in favor of the right to raise the question under general demurrer. 1 Pars. Pl. & Pr. (2d Ed.) §§ 639, 640.
At the trial, Joseph Bromel, who was a joint maker with the plaintiff of the promissory note for $870 to Alexander H. Horner (alleged in the declaration as an unfounded claim, the confession of judgment upon which to Horner is alleged as the consideration for Horner's promise on which suit was brought) was admitted as a witness to prove the unfounded character of that note. The first exception raises the question whether this witness was competent, it appearing at the trial that Alexander H. Horner, the payee of the note, was then dead, and his executors were the parties defendant to the suit. Under the construction which has been given to the evidence acts of 1864 and 1868 by numerous decisions of this court, we think no error was committed in admitting Bromel's testimony. The object of these acts was to remove restrictions, and not to impose them. Only such exceptions were made as seemed necessary to preserve mutuality, and prevent undue advantage being given to a survivor in a contract whose other contractor was dead. Downes, Ex'r, v. Maryland & D. R. R., 37 Md. 104; Johnson v. Heald, 33 Md. 352; Swartz v. Chickering, 58 Md. 295. It is only where the suit is upon the cause of action to which one party is dead that the other party is excluded to preserve mutuality. Where such contract only incidently arises in another suit, on another contract, and about something else, as matter of evidence touching this suit, the death of one party to it does not close the mouth of the other; but he is a competent witness. Smith v. Wood, 31 Md. 297; Wright v. Gilbert, 51 Md. 157; Leiter v. Grimes, 35 Md. 434.
A contrary view has been contended for on the authority of Standford v. Horwitz, 49 Md. 529, but we do not find anything in that case inconsistent with the ruling here made, and supported by the authorities already cited. In Standford v. Horwitz the proceeding was upon the mortgage to secure certain notes. The witness who was excluded was a party to the mortgage debt, and stated the signature to be his own. It was desired to prove by him that he was acting merely for his son, and that the note was tainted with usury. This was not permitted, and with manifest propriety, as the mutuality in such case would not be preserved. In the case before us the suit is upon a contract to which the witness Bromel was no party, and the contract to which he was a party only incidently figures in the suit as matter of evidence.
The second bill of exceptions embraces the prayers which were granted and refused.
The fourth prayer of the defendant, which was rejected, was treated, not only as a prayer to take the case from the jury, but as interposing special exceptions to the plaintiff's first prayer, which was granted. It states three propositions: (1) That there is no evidence in the cause legally sufficient to support the same; (2) that no consideration has been proven for the promise sued on; and (3) because none of said promises and agreements can be maintained under the statute of frauds.
If the provisions of the statute of frauds do not prevent recovery, there was undoubtedly sufficient consideration for the defendant's undertaking, and proof from which the jury could find for the plaintiff. The $1,263.11, amount of principal and interest of the $870 note, on which suit was pending, and the validity of which was denied as an actual debt, for which the plaintiff confessed judgment, together with the $2,000 actually advanced on the contract, certainly form a real and valuable consideration for the undertaking on the part of Horner on which the judgment appealed from was obtained. Frazier treated as valid a note which he contested, and abandoned defense, and confessed judgment, which was afterwards made by execution. The jury had evidence that Frazier did not in fact owe that money to Horner, and, if he did not, there was certainly sufficient consideration for the contract sued on in this case, and authorities cannot be needed for so transparent a proposition. Whether the contract sued on was proven as laid in the declaration was a question for the jury upon all the proof submitted. Whether it was an enforceable contract is the question presented by the appellant's fourth prayer. The contention is that it was void, not being in writing, as required by the statute of frauds.
It is not a contract for an interest in land, and was not obnoxious to the land clause of the fourth section of the statute. The decision of Lamm v. Port Deposit Ass'n, 49 Md. 240, would seem to be conclusive on that point. This we understood as conceded at the hearing and the only ground relied on under the statute is that it was required to be in writing because it was a contract not wholly to be performed within a year from the making thereof. To bring a case within the year clause of the fourth section of the statute, it must appear that it was expressly and specifically agreed that the contract was not to be performed within a year. This was the construction given to the statute in Fenton v. Emblers, 3 Burr. 1278, and that construction has been unqualifiedly adopted in this state. In Ellicott v. Peterson's Ex'rs, 4 Md. 488, Judge LE GRAND says: "The statute will not apply where the contract can by any possibility be fulfilled or completed in the space...
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