Impervious Products Co. v. Gray

• Court: Maryland Supreme Court
• Writing for the Court: STOCKBRIDGE, J.
• Citation: Impervious Products Co. v. Gray, 127 Md. 64, 96 A. 1 (Md. 1915)
• Decision Date: 11 November 1915
• Docket Number: 27.
• Parties: IMPERVIOUS PRODUCTS CO. v. GRAY.

96 A. 1

127 Md. 64

IMPERVIOUS PRODUCTS CO. v. GRAY.

No. 27.

Court of Appeals of Maryland

November 11, 1915

Appeal from Superior Court of Baltimore City; Morris A. Soper Judge.

Action by H. Emory Gray against the Impervious Products Company, a corporation. Judgment for plaintiff and defendant appeals. Reversed, without new trial.

Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Jacob S. New and Julius H. Wyman, both of Baltimore, for appellant.

Ridgely P. Melvin, of Annapolis (W. Thomas Kemp, of Baltimore, on the brief), for appellee.

STOCKBRIDGE J.

In the year 1911, H. Emory Gray entered into a contract with the State Roads Commission for the construction of a road on Patapsco street, between First street and Pennington avenue Brooklyn, Anne Arundel county. For the execution of that contract Mr. Gray, among other materials, had occasion to purchase a preparation known as binder, and in the month of September agreed with the Impervious Products Company for the supply of it which he would need in the construction of the road under his contract. The terms of that agreement were as follows:

"September, 1911.

H. E. Gray, Esq. Brooklyn, Md.--Dear Sir: We agree to furnish you with Fairfield Binder No. 5 hot at our plant at 9¢ per gallon and guarantee same to comply with the State's specification.

Yours very truly,

Impervious Products Co."

A portion of the binder thus contracted for was furnished to Mr. Gray by the Impervious Products Company in the fall of 1911, and it appears to have fully met the requirements of Mr. Gray's contract with the state roads commission. During the winter the work under Mr. Gray's contract was suspended, but with the opening of the spring of 1912 it was resumed, the binder being furnished as before by the Impervious Products Company, but at this time the binder failed to prove satisfactory, was condemned by the state inspector, and a portion of the road which had been built by Mr. Gray during that spring was required to be rebuilt. Where Mr. Gray obtained the binder for the rebuilding does not clearly appear in the record, but apparently from some source other than the Impervious Products Company.

In April, 1913, the Impervious Products Company instituted suit against Mr. Gray for the sum of $345.60, as the purchase money due for binder furnished between June 17 and June 21, 1912. To this suit Mr. Gray filed the general issue pleas, and a plea in set-off, worded as following:

"That the plaintiff is indebted to the defendant in an amount greater than the plaintiff's claim *** and the defendant claims $600, which amount, except for excess claimed by defendant, he is willing to set off against the plaintiff's claim."

Then followed a bill of particulars of the defendant's claim, amounting to $440.05. Upon these pleadings that case went to trial, and after evidence taken and instructions given by the court, resulted in a verdict for the defendant.

In 1914 the present suit was instituted by Mr. Gray to recover as damages $334.20, and in this suit the plaintiff and present appellee filed a bill of particulars identical with that filed with his plea of set-off in the previous suit, except that in this account the labor was charged at 15 cents an hour, instead of 20 cents an hour, as in the first suit. Numerous exceptions were taken during the trial of this case, all of which, however, revolve around the question whether Mr. Gray was estopped from maintaining the second suit, by reason of the earlier one, and a determination of whether the first suit amounted to res adjudicata.

The first suit was in assumpsit for goods sold and delivered. To this suit a plea of set-off, where the nature of the set-off claimed was an unliquidated damage, was an improper plea. Westminster Co. v. Coffman, 123 Md. 619, 91 Atll. 716.

The plea of set-off is a defense of purely statutory creation and is limited to mutual debts; to make a plea of set-off good the debts must be mutual, must be of the same kind or quality, and be certain and clearly ascertained or liquidated. 1 Poe on Pleading, § 613.

That the claim of Mr. Gray in the first suit was one in the nature of a claim for damages for noncompliance with the provisions of the contract hereinbefore set out is perfectly clear, both from the two bills of particulars filed in the respective cases, and from the testimony of Mr. Gray himself. But while the plea of set-off and evidence given in the first suit could not have been sustained as or under a plea of set-off, the evidence was entirely proper to be given under the general issue pleas filed, because it tended to show a right to recoup on the part of Mr. Gray. Numerous cases in this state have sustained the doctrine that a defendant may in an action of assumpsit under a general issue plea, show injury on which to found a claim for recoupment. Doggett v. Tatum, 116 Md. 147, 81 A. 376; Rawlings v. Nash, 117 Md. 393, 83 A. 646; Sullivan v. Boswell, 122 Md. 539, 89 A. 940.

The appellee has strongly urged that the plea of set-off having been an improper one, he is not now precluded from setting up his claim of damages, and relies for this on the case of Davidson Chemical Co. v. Miller, 122 Md. 141, 89 A 401. In that case, however, while a plea of set-off had been filed, the plea was subsequently withdrawn, and the issue was not presented to the jury. In the present case the plea of set-off never was withdrawn, and the rejection of the defendant's second prayer in...