Mitchell v. McCleary

• Decision Date: 03 June 1875
• Citation: Mitchell v. McCleary, 42 Md. 374 (Md. 1875)
• Parties: HIRAM MITCHELL v. PETER MCCLEARY.
• Court: Maryland Court of Appeals

42 Md. 374

HIRAM MITCHELL v. PETER MCCLEARY.

Court of Appeals of Maryland

June 3, 1875

APPEAL from the Circuit Court for Garrett County.

The appellee leased in writing his woollen factory and farm lying on Mill Run, in Garrett County, to Valentine Boettner, for the period of five years, commencing on the 1st of April 1869, upon terms specifically set out in the lease. Possession of the leased premises was delivered to Boettner by the appellee. On the day of the execution of the lease the appellant executed the following guaranty:

"I -- undersigned, do agree to, and with Peter McCleary, to guarantee to him that Valentine Boettner, will pay to him, annually, the rent of four hundred dollars in each and every year during his tenancy; and further guarantee that he will pay to Peter McCleary the said rent as is mentioned in the within agreement, which is as follows: That the said Boettner is to pay to the said McCleary the sum of two hundred dollars, on the first days of October and on the first days of April in each and every year of his lease; and we further agree and guarantee to Peter McCleary, that Valentine Boettner will comply in all respects with all his obligations as are mentioned and described in the within instrument of writing.

In witness whereof, we have hereunto set our hands and affixed our seals, this twenty-second day of November, in the year of our Lord eighteen hundred and sixty-eight.

(Signed,) HIRAM MITCHELL, [Seal.]

Test:--(Signed)--Ambrose Brailer."

Upon the default of the lessee, this action was brought by the appellee against the appellant on the foregoing guaranty. The defendant demurred to the declaration; and the demurrer being overruled, he pleaded. The plaintiff demurred to the pleas and the demurrer was held good. The defendant thereupon, leave being granted, filed his amended pleas. Judgment was rendered for the plaintiff, and the defendant appealed.

The cause was submitted to BARTOL, C.J., STEWART, BOWIE, BRENT, GRASON, MILLER and ROBINSON, J.

Wm. M. Price and Wm. Brace, Jr., for the appellant.

A. H. Blackiston and M. A. Healey, for the appellee.

MILLER J., delivered the opinion of the Court.

The only question presented by this appeal is, was the Court below right in overruling a general demurrer to the declaration? That question must be decided in view of the fact that all that is now required for a declaration to contain, is a plain statement of the facts necessary to constitute a ground of action, and that no general demurrer will be allowed for a mere informal statement of the cause of action if that statement be sufficient in substance. Code, Art. 75, secs. 3, 7. The suit is upon a guaranty given by the defendant to the plaintiff that one Boettner shall pay the rent and comply with all the other obligations on his part mentioned in a lease of certain property leased by the plaintiff to him. From its terms this guaranty appears to have been written upon the lease itself. The case has been submitted on brief notes by the appellant's counsel, and we shall with equal brevity dispose of the few objections they make to the declaration.

1st. They say the guaranty set forth in the declaration is upon its face an agreement to guarantee rather than a guaranty itself. We do not so read it. The defendant not only...