Kent v. Holliday

• Citation: 17 Md. 387
• Parties: DANIEL KENT v. ROBERT B. HOLLIDAY.
• Decision Date: 29 October 1861
• Court: Maryland Court of Appeals

17 Md. 387

DANIEL KENT v. ROBERT B. HOLLIDAY.

Court of Appeals of Maryland.

October 29, 1861

Where a plaintiff took no exception to the action of the court in overruling a ne recipiatur to the defendant's demurrer, but joined in demurrer, he cannot be heard to say that the demurrer was not interposed at the proper time.

In an action against a partnership firm on a partnership contract all those who were partners at the time of the contract ought to be joined as defendants, for such a contract is a joint contract.

A declaration, which discloses that there was a joint-contractor, at the time the contract sued on was made and does not aver he was dead, or a non-resident of the county, or account in any other way for his not being joined in the action, is bad on demurrer.

Such defect in a declaration is a defect in substance, which could be availed of by general demurrer, and the law applicable to such a case is not changed by the Act of 1856, ch. 112.

To a declaration against the acceptor of a draft, framed under the Act of 1856, ch. 112, the defendant may plead that he did not promise as alleged, such promise being implied by law from the facts stated in the declaration.

There is no error in admitting in evidence the bill of exchange mentioned in the declaration, that declaration having been decided to be sufficient; in deciding a question presented by an exception this court is confined to the facts stated in it, and cannot look to other parts of the record.

A prayer that, under the pleadings and evidence in the cause the plaintiff is not entitled to recover, is, since the Act of 1825, ch. 117, too general.

APPEAL from the Circuit Court for Calvert county.

Action, brought on the 24th of August 1857, by the appellee, as endorsee, against the appellant, as acceptor, of a bill of exchange. The pleadings are sufficiently stated in the opinion of this court. The record shows there was filed in the case, at the same time as the declaration, a bill of exchange, dated the 14th of Oct. 1854, at four months, for $500, drawn by J. T. Lyles upon, and accepted by, Thomas H. Kent of Jos. & Co., payable to the order of R. G. Mackall, and endorsed by him and one James Hackett.

1 st Exception. The plaintiff having first proved the signatures of the drawers, acceptors, and of Mackall, the endorser of the bill of exchange, mentioned in the declaration filed in this cause, offered to read said bill of exchange in evidence to the jury, but the defendant objected to the admissibility of said bill of exchange in evidence under the pleadings in the cause. This objection, the court (BREWER, J.) overruled, and allowed said bill of exchange to be so read in evidence, and to this ruling the defendant excepted.

2 nd Exception. In addition to the evidence set forth in the first exception, made part of this, the plaintiff proved that Thomas H. Kent of Jos., never had been a resident of Calvert county, and there rested. The defendant then asked the court to instruct the jury that, under the pleadings and evidence in this cause, the plaintiff is not entitled to recover. This instruction the court refused to grant, and to this ruling the defendant excepted, and the verdict and judgment being against him, appealed.

The cause was argued before LE GRAND, C. J., BARTOL and GOLDSBOROUGH, J.

N. Brewer, Jr., for the appellant:

1st. The first question in the case arises upon the defendant's demurrer to the declaration. The plaintiff having joined in demurrer, and not having taken any exception to the action of the court in overruling his ne recipiatur to this demurrer, because of the previous plea and issue, it is too late now for him to make the objection. But besides this there was a demurrer by the plaintiff to the defendant's second amended plea, which was sustained by the court, and this demurrer mounts up to the first error in pleading. 10 G. & J., 27, State vs. Nichols. The sufficiency of the declaration is, therefore, clearly up for review, and it is insisted that the variance between the writ and the declaration is fatal on demurrer. The suit is against Kent in his individual capacity, whilst the declaration, on its face, discloses a joint contract of the defendant and Thos. H. Kent of Jos. Coll. on Part., 419, 420, (Ed. of 1834.) In the case of Merrick vs. Bank of Metropolis, 8 Gill, 74, 75, it was decided, that if the declaration discloses that the promise is joint, it is necessary to aver that the other joint promissor is dead, or to account for his not being joined in the action, or it is bad upon demurrer or writ of error. It was not necessary, therefore, to plead in abatement, in order to take advantage of this objection. See, also, on this point, 1 Chitty's Pl., 46, 47. 13 Md. Rep., 117, 122, Balt. Cemetery Co., vs. Independent Church. Smith's Lead. Cases, 294.

2nd. The defendant's second plea was good, and the demurrer to it should not have been sustained. If the defendant was liable at all it was by reason of having, as acceptor, promised, by his acceptance, to pay the bill at maturity. This promise was necessarily implied from his acceptance, and therefore was properly traversed by this second plea. Act of 1856, ch. 112, sub-ch. 2, Art. 6, sec. 80.

3rd. The questions presented by the exceptions relate to the variance between the declaration and the bill of exchange offered in evidence, and, it is submitted, this variance is fatal. The narr. states the draft was drawn by J. T. Lyles & Co., when the record shows it was drawn by J. T. Lyles. The narr. states, that it was accepted by Daniel Kent and Thos. H. Kent of Jos. & Co., whereas the draft offered in evidence was accepted by Thos. H. Kent of Jos. & Co. The narr. states, that the draft was endorsed by Mackall to the plaintiff, whereas that offered in evidence was endorsed by Mackall to Hackett, and the endorsement of the latter was not proven. It should not, therefore, have been admitted in evidence. 1 Greenlf. on Ev., secs. 56, 58, 64, 66, and cases there cited. 1 Phillip's Ev., 506. 2 Camp., 305, Jones vs. Mars. 3 Camp., 463, Hodge vs. Fillis. Ibid., 247, Roche vs. Campbell. 3 Bos. & Pull., 456, Turner vs. Eyles. 4 Term Rep., 611, Gordon vs. Austin. 2 H. & G., 182, Ferguson vs. Tucker. 3 Gill, 190, Turner vs. Maddox. 4 H. & J., 283, Hunt vs. Edwards.

Wm. G. Ridout and A. B. Hagner, for the appellee:

1st. After the defendant's plea, that he did not accept the bill of exchange as alleged, on which issue was joined, and which was never withdrawn, nor any leave asked from the court to do so, it was too late to plead in abatement, or to obtain the benefit of the non-joinder in any other manner. 4 Gill, 166, Chapman vs. Davis. 8 Gill, 74, Merrick vs. Bank of Metropolis. But if the question raised by the demurrer to the declaration is before the court, we insist there was no error in the action of the court thereon. The supposed informality in the plaintiff's proceedings, was, that the writ and narr. were against the defendant alone, while the bill offered in evidence was accepted by the firm of which Thos. H. Kent of Jos. was a member, and, therefore, the action should have been against him also. But, it is submitted, it was not necessary to declare against the other member of the firm, and that the suit against the defendant, as a member of it, will be sustained. 7 Term Rep., 597, Churchill vs. Gardner. 19 Ark., 701, Hicks vs. Maness. 1 English, 24, Hamilton vs. Buxton.

2nd. But if it were erroneous to omit to sue the other partner, advantage could only be taken of the omission by plea in abatement. 1 Chitty's Pl., 46. Cary on Part., 120, 121, 122, in 5 Law Lib., 49. Chitty on Bills, 579, 580, (Ed. of 1839.) 3 H. & J., 572, Brown vs. Warram. 8 Gill, 74, Merrick vs. Bank of Metropolis. Act of 1856, ch. 112, sub-ch. 1, Art. 2, sec. 31, Art. 7, sec. 132, and sub-ch. 3, form 84.

3rd. The rulings in the exceptions were also correct. There was no such variance between the bill offered in evidence and that declared on, as to render the former inadmissible in evidence. Chitty on Bills, 579 to 582, (Ed. of 1839.) Besides, the objection to the evidence was too general; if any part of it was admissible there was no error in overruling the objection to the whole. 6 Md. Rep., 407, Hatton vs. McClish. A party may offer his evidence in what order he pleases. 6 Md. Rep., 525, Warner vs. Hardy. The prayer in the second exception was too general. 6 Md. Rep., 526, Warner vs. Hardy.

OPINION

LE GRAND, C. J.

This suit was brought by the appellee, as endorsee, against the appellant, as acceptor, of a bill of exchange. The writ was issued against the defendant in his individual capacity. The declaration alleges, in substance, that J. T. Lyles & Co. drew their bill of exchange, and directed the same " to the said defendant and one Thomas H. Kent of Joseph, trading under the name of Thomas H. Kent of Jos. & Co., requiring them to pay to R. G. Mackall, or order," & c., " and the said defendant and the said Thomas H. Kent of Joseph, trading as aforesaid, accepted the said bill," & c.

The defendant demurred to this declaration, upon the ground substantially, that it sets forth as cause of the action, a joint obligation of the defendant with one Thos. H. Kent of Jos., trading under the firm of of Thomas H. Kent of Jos. & Co., and that the suit should have been against the joint acceptors in their partnership capacity, and not against the defendants in his indiv...