International Harvester Co. v. Neuhauser

• Court: Maryland Supreme Court
• Writing for the Court: BOYD, C.J.
• Citation: International Harvester Co. v. Neuhauser, 128 Md. 173, 97 A. 372 (Md. 1916)
• Decision Date: 02 March 1916
• Docket Number: 23.
• Parties: INTERNATIONAL HARVESTER CO. v. NEUHAUSER.

97 A. 372

128 Md. 173

INTERNATIONAL HARVESTER CO. v. NEUHAUSER.

No. 23.

Court of Appeals of Maryland

March 2, 1916

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Action by the International Harvester Company against Samuel M Neuhauser. From an order striking out a judgment against the defendant, plaintiff appeals. Affirmed.

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

William P. Cole, Jr., of Towson, and Joshua Clayton, of Elkton, for appellant. A. A. Piper and D. G. McIntosh, both of Towson for appellee.

BOYD C.J.

This is an appeal from an order striking out a judgment which the appellant had obtained against the appellee, the motion having been made after the expiration of the term at which the judgment was obtained. The cause of action was a note dated July 8, 1914, given for the price of a threshing machine, purchased of the appellant by the appellee, for which he signed an order dated June 4, 1914. The appellee ordered the machine "subject to all conditions of agreement and warranty printed on back of this order and made a part hereof," and agreed that:

"Purchaser will receive same on arrival, will pay freight and charges thereon from factory where made, and upon delivery or tender thereof, will pay to your order ...... $...... cash, and execute approved notes payable to your order as follows: $845.00 due Nov. 15, 1914 ...... To be settled for by note on delivery."

The "warranty and agreement" was in part as follows:

"International Harvester Company of America (Incorporated) hereby warrants said threshof, attachments and engine to be well made, of good material and durable with proper care, and to do good work if properly operated by competent persons, with sufficient power and the printed rules and directions of the manufacturer intelligently followed. If after three days trial by the purchaser, said property shall fail to fulfill the warranty, written notice thereof shall at once be given to said company at Harvester Building, Chicago, Illinois, and also to the agent through whom the same was purchased, stating wherein it fails to fulfill the warranty, and reasonable time shall be allowed said company to send a competent man to remedy the difficulty, the purchaser rendering necessary and friendly assistance."

The note which is under seal was payable on or before the 15th of November, 1914, for $845, with interest, and contained among oliver provisions:

"I hereby confess judgment to be entered by the proper officials at any time after maturity for the amount then due hereunder, with all exemptions hereby expressly waived."

On April 6, 1915, a case was docketed in the circuit court for Baltimore county, the appearances of attorneys for the plaintiff and the defendant were entered, a narr., the note, agreement for judgment by confession signed by the attorneys, and an order of court that the judgment be entered in accordance with the agreement were filed. The same day a judgment by confession was entered for $864.43, with interest and costs. There is nothing in the record showing whether the attorney who appeared for the defendant had been authorized by him to do so, but as the defendant swore that he did not know that the note contained authority to confess judgment or that a judgment had been entered, until an execution was issued and his property was levied on (which is not denied), the attorney probably appeared at the instance of the plaintiff by reason of the provision in the note.

Preliminary to a consideration of the main question in the case it may be well to dispose of several matters:

1. We do not find that the action was instituted under the Speedy Judgment Act, as suggested by the appellee, but it was a judgment by confession, entered the day the case was docketed, and hence it becomes unnecessary to determine whether a judgment obtained under that act should be stricken out if there was a misjoinder of counts in the declaration.

2. It was held in Tyrrell v. Hilton, 92 Md. 176, 48 A. 55, that a judgment could be validly entered by confession on a note containing a provision, "And we do hereby confess judgment for the above sum, with interest and costs of suit," even by the clerk of the court, under section 6, art. 26, of the Code, and that it made no difference that the attorneys who assumed to appear for the defendants were without express authority to do so; the defendants having given their assent to the judgment by their own signature to the obligation. The court also said:

"We cannot doubt that any judge, having ordered to be entered a judgment under the circumstances we have supposed, would refuse to vacate it upon the grounds urged here."

As we have seen the entry of this judgment was authorized by an order of a judge, and as it could not be stricken out merely because the only authority for it was contained in the note if the clerk had entered it under section 6 of article 26 a fortiori it could not for that reason be when authorized by the court.

3. It has however, been settled in this state, in addition to what may be implied from what was said in Tyrrell v. Hilton, that a judgment by confession can be stricken out for sufficient reasons, as well as any other judgment. Sunderland v. Braun Packing Co., 119 Md. 125, 86 A. 126, Ann. Cas. 1914D, 156.

4. The mere fact that the appellee did not know that the note contained an authority for a confession of judgment would not of itself be sufficient to justify the court in striking out the judgment. He can read, and in the absence of fraud or something which would furnish a sufficient excuse for not reading the note before signing it, he could not be relieved of the judgment wholly on the ground that he did not know that it contained such a provision. The cases of Spitze v. B. & O. R. R. Co., 75 Md. 162, 23 A. 307, 32 Am. St. Rep. 378, Smith v. Humphreys, 104 Md. 285, 65 A. 57, Paper Bag Co. v. Carr, 116 Md. 541, 82 A. 442, and others in this state which might be cited, show that something more than a mere want of knowledge that the note contained such a provision would be required, in order to justify the court in striking out the judgment.

5. This brings us to the important question in the case. There is evidence tending to show a breach of the warranty quoted above by the appellant as to the machine. It is true there is some to the contrary, but if the testimony of the witnesses produced by the defendant is correct, the machine not only did not do good work, but on the contrary did the work in a way that was both unsatisfactory and calculated to injure the appellee's business, as no one would likely employ him the second time to thresh grain if the machine worked as some of the witnesses testified. Moreover, it was conceded by the appellant's agents who delivered the machine that it had been in a wreck and was damaged when it reached the station. Mr. Snavely, the agent who made the sale, testified:

"As I told you, the machine came there in bad repair--some pulleys had been robbed of the belts, the leather that goes around the pulley--and the house sent these out and made them all right. But the machine gave trouble. Mr. Neuhauser continually complained to me about the machine, and I would immediately call up the house in Baltimore over the long-distance telephone and tell them, and they would say they

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