James v. Tyler, 259

• Decision Date: 16 May 1973
• Docket Number: No. 259,259
• Citation: 269 Md. 48,304 A.2d 256
• Parties: C. E. JAMES v. Goldsborough S. TYLER.
• Court: Maryland Court of Appeals

Page 48

269 Md. 48

304 A.2d 256

C. E. JAMES v. Goldsborough S. TYLER.

No. 259.

Court of Appeals of Maryland.

May 16, 1973.

Robert Anthony Jacques, Rockville (Douglas R. Taylor, Rockville, and James W. Salter, Silver Spring, on the brief), for appellant.

S. Allan Adelman and Rourke J. Sheehan, Rockville, for appellee.

Argued Before MURPHY, C. J., and McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

SINGLEY, Judge.

This case raises the question whether a summary judgment for $4,653.59 was properly entered against the appellant James in favor of the appellee Tyler. We think it was, and shall affirm. While the facts underlying the dispute are relatively simple, the procedural aspects of the case are a little more difficult.

In August 1967, the appellant James; James' brother Roy and Roy's wife borrowed $5,650.00 from Seaboard Citizens National Bank of Norfolk, Virginia, apparently to satisfy an antecedent debt to Thomas' Garage, from which $5,000.00 had been borrowed for a purpose and at a time not disclosed by the record. The note which evidenced the loan was for $5,650.00, was signed by the three borrowers, and by Thomas' Garage, a partnership in which the appellee Tyler was a partner, as an accommodation maker. The note provided for repayment in 23 monthly installments of.$236.00 and a final installment of $222.00. It would seem that the note was discounted for $5,000.00 with the result that $650.00 represented interest at 6 1/2% for two years. ¹

It was Tyler's contention that eight monthly payments of.$236.00 had been made on the note, totalling $1,888.00, when James, James' brother and sister-in-law defaulted, with the consequence that Tyler was required to pay the unpaid balance of $3,762.00. The note was endorsed to Tyler and it was for this sum and interest that Tyler, as holder of the note, brought suit against James in the Circuit Court for Montgomery County. ² From a summary judgment for $3,762.00 plus interest from 18 November 1968 of $891.59 entered against James, this appeal was taken.

Set out below is the affidavit which was filed in support of Tyler's motion for summary judgment:

'I am the owner and holder of a certain negotiable promissory note dated Norfolk, Virginia, August 10, 1967, payable to the order of Seaboard Citizens National Bank, in the amount of Five Thousand Six Hundred Fifty ($5,650.00) Dollars, payable in installments as set out in the note. This note was made by ROY W. JAMES, BERYL S. JAMES, his wife, and C. E. JAMES, brother of ROY W. JAMES. After the note was negotiated at the bank, and at the request of the maker, the note was sent by the bank to Thomas' Garage, in Norfolk and Thomas' Garage signed the note as an accommodation maker. At that time Thomas' Garage was a partnership consisting of myself (who signed for Thomas' Garage) and Mr. Tommy Thomas, since deceased. The makers of the note made eight (8) payments on the note of Two Hundred Thirty-Six ($236.00) Dollars, for a total paid by them on the note of One Thousand Eight Hundred Eighty-Eight $1,888.00) Dollars, leaving a balance then due of Three Thousand Seven Hundred Sixty-Two (3,762.00) Dollars. According to the records of the bank (which I have personally examined), the eight (8) payments were made on September 22, October 24 December 5, 1967, and January 12, February 21, March 19, April 11, and May 15, 1968. On November 4, 1968, on behalf of Thomas' Garage, I made six (6) payments of Two Hundred Thirty-Six ($236.00) Dollars each, which brought the note up to date through the October 1968 payment. Subsequently, Thomas' Garage, at the demand of the holder, was forced to take up the note by paying the then balance due in full. Demand had been made upon Roy W. James and his wife, who were unable to pay the note. Subsequently, Thomas' Garage made demand upon Roy James and his wife, who refused to make payment, and demand was made upon C. E. James, co-maker, who likewise refused to pay on the note. Subsequently, Roy James and his wife declared bankruptcy in the Federal Court in Norfolk, listing the note as a debt, and they have been discharged.

'C. E. JAMES is indebted to me for the above in the amount of Three Thousand Seven Hundred Sixty-Two ($3,762.00), with interest at the highest legal rate from November 15, 1968, until the debt is paid in full.

'I have personal knowledge of the facts stated herein, and am competent to testify as a witness in this matter.'

The affidavit which accompanied James' motion for denial of summary judgment is as follows:

'That I, C. E. James, am not indebted to Goldsborough S. Tyler, the plaintiff in above stated suit in Law No. 29,562, in the amount set forth in the original suit ($3,762.00 with interest at highest legal rate from Nov. 15, 1968 until debt is paid in full).

'The debt as stated was a note originally co-signed August 11, 1967 by Roy W. James, Beryl S. James, C. E. James, and Thomas Garage by Goldsborough S. Tyler, the plaintiff in this suit, to the order of Seaboard Citizens National Bank, Norfolk, Virginia in the amount of $5,650.00; said note having been co-signed by the defendant herein and Goldsborough S. Tyler, plaintiff herein. The defendant has received letters from the bank Seaboard Citizens National, showing full and complete balance in account in the amount of $2,399.89, of which then said defendant in this case being a cosigner with plaintiff in this case certainly in not indebted in the amount of $3,762.00, if at at all.

'The defendant has made three (3) motions for depositions under Maryland Rules of Procedure, and at no time has motion for deposition been ordered.

'Correspondence from bank over the signatures of officers of bank, states that Roy W. James, now deceased, owed a balance of much less than stated in suit.

'Statement of Mr. Roy W. James, now deceased, as principal borrower on the co-signed note indicates that this was a usurious undertaking in that the plaintiff Goldsborough S. Tyler and his brother charged him 10% interest per month, on one note and regular 5% interest per balance of undertaking, and that Thomas Garage, one co-signer on note was owned in whole, or in part by plaintiff in this case, Goldsborough S. Tyler, and that Goldsborough S. Tyler, refuses to appear for depositions, for discovery over long periods of time.

'The original action in debt so stated filed on or about March 4, 1970, in an affidavit by an agent, Richard L. Still, in the amount set forth in this (action of debt) of $3,762.00.

'The note signed by me originally was at some point changed. I feel that this entire suit should be exposed to the Honorable Court of Montgomery County, Maryland, for a decision. There is certainly a question of fact and a question of law. Mr. Goldborough S. Tyler, cosigner of the note presented for suit received all assets therein for the benefit of the owner or co-owner of garage known as Thomas Garage.'

If the two affidavits are compared, it will be noted that James' affidavit is only tangentially responsive to Tyler's. True, in the first paragraph, it contains a flat denial of liability, which we have held not to be a dispute of a material issue of fact, Shaffer v. Lohr, 264 Md. 397, 404, 287 A.2d 42 (1972); Frush v. Brooks, 204 Md. 315, 320-321, 104 A.2d 624 (1954). James' attempts to buttress his denial by hearsay statements which would clearly be inadmissible in evidence do not meet the test of Maryland Rule 610 b which requires the...