Lord v. Smith
| Decision Date | 09 December 1908 |
| Citation | 71 A. 430,109 Md. 42 |
| Parties | LORD v. SMITH. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; Charles E. Phelps Judge.
Bill by Charles W. Lord against Harry W. Smith for an injunction and accounting. Decree of dismissal, and complainant appeals. Reversed and remanded.
Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, WORTHINGTON HENRY, and THOMAS, JJ.
J. Kemp Bartlett and Wm. S. Bansemer, for appellant.
Wm. A Wheatley, for appellee.
The litigation in this case grows out of a dispute between the parties as to which is the proprietor of a certain brokerage business carried on in Baltimore city for a number of years past under the trade name and style of Charles W. Lord & Co.
The appellant, who was the complainant below, claims that the business was established by him in 1895, and has ever since been conducted by him as the sole proprietor, with the appellee (the defendant below) as his trusted and confidential clerk; while, on the other hand, the appellee contends that the business was established in 1895 by him and that it has ever since been conducted by him as sole proprietor, with the appellant as his clerk. According to the testimony of the parties themselves, neither of them was aware of the claims and pretensions of the other until the month of November, 1907, when a controversy took place between them concerning the ownership of the business, and Mr. Lord according to his testimony claimed the whole; but, according to Mr. Smith's testimony, Mr. Lord said in the course of that controversy that he had as much interest in the business as Smith had, that half of it was his. At the same time Smith claimed that the whole business belonged to him. Shortly after this conversation--that is to say, on December 24, 1907--Mr. Lord filed the bill of complaint in this case in the circuit court for Baltimore city, setting forth his claims to the business as sole proprietor, alleging that he had established the business in the early part of the year 1895 at 21 Grant street, in Baltimore city, and had there begun operations as a manufacturer's agent of woodenware and kindred merchandise; that Harry W. Smith, the defendant, had been taken into the employ of the old firm of Lord & Robinson when he was a boy 15 years of age, and had continued in its employ for many years until the failure of that firm in 1893; that complainant had been a member of the firm of Lord & Robinson until it went into the hands of receivers in the year 1893, and that there had developed toward Smith on complainant's part an attitude of trust and confidence; that, upon commencing business again after his failure, the complainant took with him to 21 Grant street the said Harry W. Smith, in whose integrity he had implicit confidence, at the weekly salary of $15 per week, which was subsequently increased to $25 per week; that at the time he started the new business the complainant was not entirely free from the obligations of the old firm, and as he contemplated handling in a fiduciary capacity, to wit, that of factor or sales agent, the money of such of his old business associates as might entrust the sales of their merchandise to him, he feared that if he opened a bank account in his own name, and deposited therein such moneys together with his own earnings, that such funds might be subject to the danger of being tied up by proceedings instituted by some of his old creditors, who had not at that time been settled with, and, for the sole purpose of avoiding this danger, he opened a bank account in the name of Harry W. Smith, with his consent, and took a power of attorney from the said Smith, authorizing the complainant to draw checks against said account; that both he and Smith thereafter drew checks upon this account so opened in the name of Smith, and that such practice was continued down to the time of filing the bill of complaint; that, by reason of the confidential relations between the complainant and Smith, the latter was allowed broad powers in the handling of the complainant's cash and bank deposits, and that Smith, acting under these broad powers, would from time to time draw checks for his own purposes over and above his weekly salary of $25, and charge them on the books of the complainant, and would from time to time purport to put back sums of money to replace the amounts so withdrawn, which sums put back, however, did not in fact measure up to the amounts withdrawn; that in the course of time the excess of the withdrawals by Smith over the amounts put back by him was over $9,000, not including withdrawals from the cash drawer; that in October, 1907, Smith had purchased with $1,750 of the complainant's money a ground rent in the dwelling property known as No. 2318 Guilford avenue, in Baltimore city. The bill further averred that Smith had recently set up pretensions that he was the sole owner and proprietor of the business, and that all the money taken by him was his own money for which he was accountable to no one; that Smith had threatened, unless complainant would recognize Smith's pretensions, to solicit away from the complainant his patrons and customers, which it was averred Smith was able to do. The prayers of the bill were for an injunction: (1) Prohibiting said Harry W. Smith from exercising any control or interference in the complainant's business as it was known under his trade-name of Charles W. Lord & Co. (2) That said Smith be enjoined from collecting any moneys, or from diverting any consignments coming or due to the said Charles W. Lord & Co. (3) That he be further enjoined from making any withdrawals from the bank deposit of the complainant standing in the name of Harry W. Smith in the National Bank of Commerce of Baltimore. (4) That he be further enjoined from removing any of the books of account or other evidence of the state of business of Charles W. Lord & Co. from the office thereof, and that he return and replace in said office any books or other evidences of account of said business that were then under his individual control. (5) That he be further enjoined from soliciting the patrons of the complainant, trading under the name of Charles W. Lord & Co., to discontinue business with the complainant, and to give their patronage to the said Smith. (6) That pending these proceedings the defendant be further enjoined from disposing of the lot of ground No. 2318 Guilford avenue, mentioned in the bill of complaint; also that said Harry W. Smith discover and set forth in detail all the sums of money taken by him during the whole period of his employment since 1895 in excess of $25 a week for services, and that Smith be decreed to make restitution...
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