Lynch v. Rogers

• Decision Date: 24 January 1940
• Docket Number: 39.
• Citation: 10 A.2d 619,177 Md. 478
• Parties: LYNCH v. ROGERS.
• Court: Maryland Court of Appeals

10 A.2d 619

177 Md. 478

LYNCH v. ROGERS.

No. 39.

Court of Appeals of Maryland

January 24, 1940

Appeal from Superior Court of Baltimore City; George A. Solter Judge.

Assumpsit by Christine Rogers against Charles Allan Lynch administrator cum testamento annexo of the estate of William T. Garrison, deceased, for domestic services rendered by the plaintiff to the defendant's testator. From a judgment on a verdict for the plaintiff, defendant appeals.

Affirmed.

Charles Allan Lynch, of Baltimore (Coyle, Lynch, Blair & Hammer, August J. Brozik, and Milton I. Vogelhut, all of Baltimore, on the brief), for appellant.

Michael J. Manley, of Baltimore (Robert L. Mainen, of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

PARKE Judge.

The action on this appeal is in assumpsit by Christine Rogers against Charles Allan Lynch, administrator cum testamento annexo of the estate of William T. Garrison, decedent, for demestic services rendered by the plaintiff to the defendant's testator during the latter's lifetime. Trial was had after a joinder on the general issue pleas of non assumpsit and nil debit. The jury found for the plaintiff, and from the judgment entered on the verdict this appeal is taken.

The principal question is the exception taken by the defendant to the Court's refusal to grant his prayer directing a verdict in favor of the defendant, at the close of the testimony on the parts of the plaintiff and of the defendant. The rejected prayer is the only one offered in the case; and by it the Court was asked to instruct the jury 'that there is no evidence in this case legally sufficient or to establish a contract implied or expressed between the plaintiff and the defendant's deceased, and therefore, their verdict must be for the defendant.'

The defendant urges in support of this prayer that the testimony on the part of the plaintiff failed to show affirmatively that the defendant's testator had not paid the plaintiff in his lifetime for her services. The prayer is open to threefold objections. It is inartificially drawn, as a general demurrer prayer. Secondly, it is not addressed to the failure of the plaintiff's testimony to show a non-payment by defendant's decedent for the plaintiff's work and labor; and, thirdly, the general rule is that payment is a matter of defense and so, affirmative testimony by the plaintiff of non-payment for services rendered is not ordinarily a necessary part of the plaintiff's right to recover.

On the first ground, the prayer is too general and indefinite. The prayer is framed in the disjunctive. In what respect or particular the evidence is legally insufficient so that the verdict must be for the defendant does not appear. There is evidently an omission by the draftsman which the Court may not undertake to supply. Where the context is silent, so that what is omitted is not clear and unmistakable, the lacuna may not be remedied by the court. Nor is the court permitted to eliminate the particle 'or', whose disjunctive force effectually separates 'legally sufficient' so that it can not be held to qualify the words 'to establish'. The test of the plaintiff's right of recovery is in the legal sufficiency of the proof tending to establish a cause of action upon which recovery was sought. As the prayer was submitted it did not point out with certainty the particular ground upon which the right of recovery is denied nor did it properly present the question of the failure of a legal sufficiency of testimony to entitle the plaintiff to recover. If the prayer had been granted, it would not have been possible to know on what theory the Court had acted. Robey v. State, 94 Md. 61, 67, 68, 50 A. 411, 89 Am.St.Rep. 405; Poe's Pleading and Practice, vol. 2, secs. 297, 300; Parr v. City Trust Company, 95 Md. 291, 298, 52 A. 512; Hatton v. McClish, 6 Md. 407; Western Md. R. Co. v. Carter, 59 Md. 306, 311; Acker, Merrall & Condit Co. v. McGaw, 106 Md. 536, 559, 68 A. 17; Turner v. Eagan, 116 Md. 35, 40, 81 A. 877.

If the formal defects of the prayer be disregarded, and it be accepted as a demurrer prayer, it can only be given effect as raising the legal sufficiency of the testimony to show a contractual relation between the plaintiff and the decedent of master and servant with reference to the work and labor done by the plaintiff for the benefit of the decedent. The prayer does not present the theory now asserted that the plaintiff must show affirmatively the non-payment by the decedent to the plaintiff of her compensation for the services given. The prayer is inconsistent with this theory as it is in denial of all contractual relation of the parties. There can be no question of payment, vel non, if there be no contract, since payment for services presupposes a contractual obligation to pay. Hence, the question of the necessity of plaintiff's showing affirmatively non-payment, as an essential element of a prima facie right of action, is not made by the prayer and cannot consistently be considered in support of this prayer on appeal. See Code, Art. 5, sec. 10; Williams v. N.Y. Life Ins. Co., 122 Md. 141, 145, 89 A. 97.

A third reason for the rejection of the prayer is that, with ample testimony which tended to support the relation of master and servant and the work done by the plaintiff as the servant of the dead master in his lifetime, there is nothing on the record to take the case out of the general rule that payment for work and labor done by request for the benefit of the master is a matter of defense, and, therefore, the servant is not under the burden of offering affirmative testimony that the debt so incurred has not been paid by the master.

Although under the general issue, the defendant may show payment in full before action brought as a complete defense, or payment in part in reduction of the demand, the plea of payment is well established, and a form in which it may be pleaded is given by statute. Code, Art. 75, sec. 28(51); Poe's Pleading (Tiffany ed.) sec. 651. The plea does not violate the rule which forbids the use of any plea that mounts to the general issue, since it gives implied color to the plaintiff's claim by confession and avoids the claim by its averment of satisfaction and discharge. It is fundamentally an affirmative defence which introduces new matter in bar of the action, and the burden of its proof it, as a general rule, upon the defendant who thus seeks to avoid the plaintiff's claim. Hardy v. Coe, 5 Gill 189, 196; Boyce Adm'r v. Young, 3 Har. & McH. 84, 85; Wolgamot v. Bruner, 4 Har. & McH. 89; Shriner v. Lamborn, 12 Md. 170, 173; Haines & Eppley v. Pearce, 41 Md. 221, 235; Rohr v. Anderson, 51 Md. 205, 215-217; McCart v. Regester, 68 Md. 429, 13 A. 361; 21 R.C.L. sec. 131, p. 119; 48 C.J. sec. 176, p. 680; Seff v. Brotman, 108 Md. 278, 283, 284, 70 A. 106; Gerrish Dredging Co. v. Bethelem Shipbuilding Corp. 247 Mass. 162, 141 N.E. 867; Donovan v. Walsh, 238 Mass. 356, 130 N.E. 841; Cary Brick Co. v. Wheeler, 210 Mass. 338, 96 N.E. 800; Lerche v. Brasher, 104 N.Y. 157, 161, 10 N.E. 58; and see Douglas v. Stephens, 27 Ga.App. 485, 108 S.E. 833, 834; Marx v. Marx, 132 Wis. 113, 111 N.W. 1103.

In the present case the testimony tends to show that the indebtedness existed for services as a domestic and housekeeper for the period extending from the beginning of the service in February, 1928, to the death of the testator in January, 1938. The personal representative of the decedent did not plead the statute of limitations to the claim. Neither was there a plea of payment nor any affirmative evidence offered under the general issue pleas of the discharge of the pecuniary obligation by the delivery of money or of something which the creditor had accepted as the equivalent of money. The question of payment for the services rendered does not appear to have been raised in the trial, and so it cannot be considered here. Code, Art. 5, sec. 10. The record here is, therefore, different from that of the Provident Trust Company v. Massey, 146 Md. 34, 125 A. 821, where the payment by the decedent for the services of the plaintiff was distinctly in issue, on the proof, and on the propriety of the rulings of the court at nisi prius on the prayers which had relation to that controversy. What was said in that decision had reference to the testimony of that case where the court recognized the principle that the fact of payment may be proved, as any other fact may be proved, by inference or circumstantial evidence, if relevant and material.

In Provident Trust Company v. Massey, supra, the plaintiff, as manager of the decedent's large farm, was throughout the period of his services in possession of large sums of money of the debtor for which, as manager, he had periodically to account for his receipts and disbursements in connection with such funds and to pay the net amount due to his master. Shortly before the latter's death, he had rendered an account with the entry of the amount due the decedent, and had forwarded to his master the account with his check for the corresponding amount and a letter stating that the check and statement balanced his books to date. The claim of the plaintiff was for services as manager of the farm for a period of eleven years prior to the decedent's death. The court held that, under these circumstances, and of the accounting with respect to the...