McGaw v. Acker Merrall & Condit Co.
| Decision Date | 30 June 1909 |
| Citation | 73 A. 731,111 Md. 153 |
| Parties | McGAW v. ACKER, MERRALL & CONDIT CO. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Alfred S. Niles Judge.
Action by the Acker, Merrall & Condit Company against George K McGaw. Judgment for plaintiff, and defendant appeals. Affirmed.
Plaintiff’s granted prayers, referred to in the opinion, are as follows:
Plaintiff’s first prayer: "The plaintiff prays the court to instruct the court sitting as a jury that, if it find that the defendant was, during the month of October, 1905, in the employ of the plaintiff as the general manager of its Baltimore branch, and was a director of the plaintiff corporation; and that the plaintiff corporation occupied the premises known as Nos. 220-222 North Charles street under the terms of a lease which expired on the 31st day of January, 1906, and the jury further find that on or about the 24th day of October, 1905, a notice was sent to the plaintiff to the effect that said lease would expire at the time aforesaid; and that thereupon the plaintiff corporation called upon the defendant to take up the matter of procuring a new lease; and it further find that the defendant took no notice of said communication, but had prior to the said 24th day of October, 1905, negotiated in his own name a lease for the premises aforesaid, which lease was in fact executed on the 26th day of October, 1905, to take effect as of February 1, 1906; and the jury further find that the defendant, when requested to assign the said lease, at first refused to do so, but under advice of counsel, on or about the 6th day of December, 1905, assigned the said lease; and the jury further find that the said lease contained a provision that the assignment of the same by the lessee would not be valid without the written consent of the lessors, and the jury further find that the lessors declined to give their consent to said assignment, and required the plaintiff to pay a higher rent, which rent if the jury find the plaintiff was obliged to pay in order to retain possession of the said premises— then in that event the plaintiff is entitled to recover, provided the jury further find that the defendant could have procured the said lease in the name of the plaintiff at the time when he procured the same in his own name as aforesaid."
Plaintiff’s second prayer: "If the jury find under the first prayer that the plaintiff is entitled to recover, then the measure of damages is the amount of increased rent, together with such costs as the plaintiff was put to in procuring the said new lease as aforesaid, provided said costs were reasonable and necessary."
Plaintiff’s third prayer: "The plaintiff prays the court to instruct the court sitting as a jury that, if it find that the defendant, George K. McGaw, occupied the position of director and local manager in the city of Baltimore of the plaintiff; and it further find that the plaintiff occupied the premises Nos. 220-222 North Charles street under lease to the said McGaw which terminated on the 1st day of January, 1906; and that on or about the 24th day of October, 1905, the plaintiff received notice that the said term would terminate as aforesaid; and that thereupon it notified said McGaw; and that the said McGaw, without notice to the plaintiff, and without applying to the said trustees for renewal of the said lease, or a new lease in the name of the plaintiff, applied to the trustees for a new lease for three years from the termination of the old lease in his own name, and obtained the lease dated October 26, 1905, offered in evidence, at the yearly rental of $8,000; and that when requested to assign the same, he at first declined, and subsequently, when advised by counsel, assigned the same to the plaintiff; that subsequently the plaintiff notified said McGaw that the trustees had refused to consent to said assignment, and had made a demand for a greater rent; and that the plaintiff notified the said McGaw of said demand, and requested the said McGaw to aid it in procuring the consent of the trustees to the assignment of the lease made by McGaw to it; that the said McGaw declined to do so, and made no effort; and the court acting as a jury further find that if said McGaw had made such effort, he could have procured the consent of the said trustees to said assignment; and that the plaintiff in good faith, and in order to save itself from the danger of an ejectment from said property, agreed to pay an additional sum of $1,000 per annum in excess of the rent demanded in the lease to McGaw— then and in that event the plaintiff is entitled to recover from the said McGaw said excess of rent so agreed to be paid, together with such reasonable costs and expenses as the jury may find the plaintiff incurred in procuring a new lease of the said premises."
Plaintiff’s fourth prayer: "The plaintiff prays the court to instruct the court sitting as a jury that, if it find that the defendant, George K. McGaw, occupied the position of local manager in the city of Baltimore of the plaintiff, and was a director of the company at the time he procured the lease in his own name on the 25th day of October, 1905, as set forth in the first prayer, if it so find, and it further find that under the facts as recited in said prayer said McGaw assigned the lease to the plaintiff, and after the said assignment the said McGaw failed to make any effort whatever to secure or procure the consent of the lessors to said assignment, but on the contrary, authorized Messrs. Warden and Hopper to use his name as a guarantor of an offer of a higher rent made by the said Warden and Hopper to the said trustees, if the jury so find, and that by reason of the said action on the part of the said McGaw, the trustees having the said higher offer, guaranteed as aforesaid, declined to assent to the said assignment, but required the plaintiff to pay a higher rent, then in that event the plaintiff is entitled to recover."
And the defendant’s twelfth prayer, as referred to in the opinion, was as follows:
Defendant’s twelfth prayer: "That unless the court sitting as a jury shall find from the evidence that damage was caused the plaintiff corporation by the defendant’s taking the lease of the premises known as No. 220-222 North Charles street in his own name, or by his failure to promptly assign said lease (if the court sitting as a jury shall find such failure), the verdict of the court sitting as a jury should be for the defendant."
Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ.
George Weems Williams and Frank Gosnell, for appellant.
John E. Semmes, for appellee.
By this appeal the pending case is brought before us for the second time. The first case is reported in 106 Md. 536, 68 A. 17. The declaration in that suit contained two causes of action incorporated in one count. It was alleged that the defendant had committed two breaches of duty which he owed to the plaintiff, whereby in each instance it suffered loss. This defect in the declaration was noticed in the opinion of this court; and, as the judgment was reversed and the case remanded, it was said that the declaration could be amended before the retrial of the case. It was accordingly amended. The narr. in the present case contains three counts. The first and second counts declare upon the two causes of action contained in the declaration in the former case, and the third count assigns a new ground of action. Briefly stated the causes of action relied upon in the respective counts of the...
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