Molesworth v. Schmidt

• Decision Date: 19 July 1950
• Docket Number: 198.
• Citation: 75 A.2d 100,196 Md. 15
• Parties: MOLESWORTH v. SCHMIDT.
• Court: Maryland Court of Appeals

75 A.2d 100

196 Md. 15

MOLESWORTH v. SCHMIDT.

No. 198.

Court of Appeals of Maryland.

July 19, 1950

George B. Woelfel, of Annapolis, for appellant. George W. Baker, Jr., of Baltimore (James C. Morton, Jr., of Annapolis, on the brief), for appellee.

Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON and HENDERSON, JJ.

GRASON, Judge.

George C. Schmidt (plaintiff) sued Carlton L. Molesworth (defendant) in the Circuit Court for Anne Arundel County on the 14th day of May 1949. The declaration contained the following common counts (1) For goods bargained and sold; (2) For work done and materials provided; (3) For money found to be due on accounts stated between them; and claimed $1,000. There was an affidavit in support of a motion for summary judgment by the plaintiff 'that there is justly due and owing by * * *, the Defendant in the within named case, to the Plaintiff on annexed account, the sum of $532.18, (with interest from December 15, 1947,) over and above all discounts * * *'. The account attached to the narr shows items from December 12, 1946, to May 23, 1947, with various credits, leaving a balance due of $532.18. On July 5, 1949, the defendant answered under oath the motion for summary judgment, and on the same day filed pleas: 1. That he never contracted as alleged and 2. that he never was indebted as alleged. The case was tried before a jury which rendered a verdict of $532.18, and judgment was subsequently entered thereon, from which the appeal in this case was taken.

It appears from the record that counsel for the respective parties intended to file in the case an agreed statement of facts. There were minor details on which they could not agree. The result was that counsel for appellant submitted a statement of facts signed by him, which was approved and signed by the court; counsel for appellee also submitted a statement of facts signed by him, to the court, which was approved and signed by the court. Both of these statements of fact are contained in the record, and we have carefully checked them. The difference between them is unimportant and trivial. The appellee moves to dismiss the appeal because Rule 22 of this court was not followed or complied with. That rule permits the parties to a cause to submit a signed 'statement of the case showing how the questions arose and were decided and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the Appellate Court. Such statement, when filed in the office of the Clerk of the lower Court shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the judgment or decree from which the appeal is taken, and, together with such judgment or decree, shall be copied and certified to the Appellate Court as the record on appeal.'

Rule 18 of this court provides that 'if any difference arises as to whether the record truly discloses what occurred in the lower Court, the difference shall be submitted to and settled by the Court and the record made to conform to the truth'. In this case the court dealt with trivial differences between counsel as to what the agreed statement of facts should contain. As we view the matter, the facts contained in each statement submitted to the court are substantially the same, and the appeal should not be dismissed. In expressing this view we do not wish to be understood that the rules of this court respecting the preparation of records will in any way be relaxed, nor that the opinions of this court concerning the matter are in any way modified. The motion to dismiss is denied.

From the record and the statements at the argument by respective counsel, the facts of this case may be stated as follows: On September 28 1946, appellee entered into a written contract with the appellant to construct a cellar for the appellant under a certain property, for the sum of $1,590. The work under this contract was completed in December, 1946, and the full contract price of $1,590 was paid by appellant to appellee on January 2, 1947. In May, 1947, the appellant entered into an oral contract with appellee whereby appellee was to lay a flagstone walk around the property in which the cellar had been constructed under the written contract referred to; and appellee claims he has fully performed the work under the oral contract, but the appellant has refused, and still refuses to pay him therefor. At the trial of the case the appellant contended that the written contract and the verbal contract were one and the same, and that the account filed with the declaration for the purpose of supporting a summary judgment constituted a bill of particulars. He contended that the work...