Maryland Trust Co. v. Poffenberger

• Decision Date: 15 January 1929
• Docket Number: 31.
• Citation: 144 A. 249,156 Md. 200
• Parties: MARYLAND TRUST CO. v. POFFENBERGER.
• Court: Maryland Court of Appeals

144 A. 249

156 Md. 200

MARYLAND TRUST CO. v. POFFENBERGER.

No. 31.

Court of Appeals of Maryland

January 15, 1929

Appeal from Baltimore City Court; Albert S. J. Owens, Judge.

Action by the Maryland Trust Company against H. Clayton Poffenberger, also known as H. C. Poffenberger. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Frederick J. Singley, of Baltimore, for appellant.

Vernon Cook, of Baltimore, for appellee.

PATTISON J.

The Lincoln Company, by its president and secretary, executed and delivered to the appellant its promissory note, dated May 10 1926, for the sum of $19,000, payable in 90 days thereafter to the order of the Maryland Trust Company, indorsed by H. C Poffenberger, William B. Weed, Jr., and George M. Kimberly. The note was not paid at maturity, though duly presented for payment at such time, and, as a result thereof, the appellant brought suit against H. C. Poffenberger as one of said indorsers.

The declaration contained six of the common counts and a special count upon the note. To this declaration, four pleas were filed. The first and second were the general issue pleas "never promised" and "never indebted as alleged." The third plea was as follows:

"That the promissory note mentioned in the plaintiff's declaration is a renewal of a note previously held by the plaintiff. This earlier note was signed by the White Tailoring Company as maker, was endorsed by George M. Kimberly, and was secured by six hundred (600) shares of the capital stock of the New Amsterdam Casualty Company as collateral, the value of said collateral being at all times far in excess of the face of the note. That at the time of the renewal of the note, the White Tailoring Company had gone out of business and the Lincoln Company had succeeded to its business. That this defendant was requested by George M. Kimberly to endorse the new note, the said Kimberly representing and stating that the stock of the New Amsterdam Casualty Company, which was to remain with the plaintiff as collateral for the new note, was much more than sufficient to pay the same and would be first applicable to the payment of the note before any demand could be made upon this defendant and that, therefore, this defendant would assume no real risk whatsoever in endorsing said note, and that relying on this statement, he did endorse the same. Subsequent to the maturity of the note, said Kimberly repudiated his agreement with this defendant, above set forth, and requested the plaintiff to threaten suit against this defendant. Whereupon, the defendant offered to pay said note, but demanded that the collateral held by the plaintiff be delivered to him upon the making of such payment. The plaintiff, acting in concert with the said Kimberly and not for the purpose of protecting its own interests, but for the purpose of protecting the said Kimberly against this defendant and attempting to decide the controversy between the said Kimberly and this defendant in favor of said Kimberly, notified this defendant that they would not deliver the collateral above mentioned to him upon payment of the note. The plaintiff is amply secured by the collateral above mentioned and has been notified of the existence of the agreement between Kimberly and this defendant, but the plaintiff nevertheless not for its own protection but for the protection and benefit of said Kimberly, has refused to proceed against said collateral, and has refused to deliver said collateral to this defendant, even should he pay said note, and has wrongfully insisted upon the filing of this suit contrary to the agreement thereinbefore mentioned."

The fourth plea is identical with the third plea, except it is stated to be ""for defense on equitable grounds."

To the first and second of these pleas the plaintiff joined issue. To the third it filed the following replication:

"The plaintiff says that it has no knowledge of any representations made by George M. Kimberly to the defendant, but on the contrary, alleges that the said Kimberly deposited the collateral with the plaintiff as security for the payment of the note, upon the condition precedent that all remedies were to be exhausted against the other endorsers before applying the collateral to the payment of the note. That plaintiff denies that it is acting in concert with the said Kimberly and not for the purpose of protecting its own interest, but for the purpose of protecting said Kimberly against the defendant, and on the contrary alleges that by reason of the condition imposed by the said Kimberly in posting the collateral as security for the note, the plaintiff cannot deliver said collateral to the defendant without making itself liable to the said Kimberly."

And the same replication is filed to the defendant's fourth or equitable plea.

The defendant demurred to the third and fourth replications, issue was joined thereon, and the demurrer was sustained, with leave to the plaintiff to amend its replications to said third and fourth pleas within 15 days thereafter. The plaintiff failed to amend its replications within the time allowed it, and on motion made by the defendant there was entered a judgment of non pros and a judgment for defendant's costs. It is from this action of the court that the appeal is taken.

No demurrer was filed to the pleas. It is, however, claimed by the appellant that, as the demurrer filed to the replications to the third and fourth pleas mounted up to the first error in the pleading, the court should have looked back of the replications and should have stricken down the pleas, first, because, as claimed by it, they amounted to the general issue pleas, and, second, because they presented no proper defense.

It is undoubtedly true that if these pleas were nothing more than general issue pleas they should have been considered, held bad, and stricken out upon the filing of the demurrer to the replications. But as said by Judge McSherry in Eastern Adv. Co. v. McGaw & Co., 89 Md. 83, 42 A. 924:

"There is a great distinction between a plea which amounts to the general issue and a plea which discloses matter that may be given in evidence under the general issue. The general issue is a denial of the whole substance of the declaration, and puts upon the plaintiff the necessity of

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