Palmer v. Brown

• Decision Date: 11 January 1945
• Docket Number: 82.
• Parties: PALMER v. BROWN.
• Court: Maryland Court of Appeals

40 A.2d 514

184 Md. 309

PALMER v. BROWN.

No. 82.

Court of Appeals of Maryland

January 11, 1945

Appeal from Circuit Court, Carroll County; James E. Boylan, Jr. Judge.

Action by A. Freeborn Brown against M. Herbert Palmer to recover for legal services rendered to defendant. From a judgment for plaintiff, defendant appeals.

Affirmed.

J. Wilmer Cronin, of Aberdeen (D. Eugene Walsh, of Westminster, on the brief), for appellant.

Eldridge Hood Young, of Baltimore, and C. Gilbert Cooley, of Bel Air (John Wood, of Westminster, on the brief), for appellee.

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

MELVIN Judge.

The appellee, a member of the Maryland Bar of long standing, was employed by the appellant to render certain professional services in seeking to recover damages, 'or compensation of any kind or character,' in connection with appellant's farm in Harford County, Maryland, which was subsequently acquired as a part of the Aberdeen Proving Ground area, a U.S. Government project. The basis of this employment was a written contract between the parties dated December 4, 1939, which the appellant cancelled by his letter to the appellee under date of August 18, 1941. The appellant later received an award for this property of $18,000 as a direct result of condemnation proceedings, and also as an indirect result, the appellee contends, of the preliminary services rendered by him under the contract aforesaid. The appellant refused to recognize any obligation to the appellee, paid him nothing, and was thereupon sued by the appellee for the value, on a quantum meruit basis, of services rendered to the date of the cancellation. The case was submitted to a jury and from the judgment on the verdict in favor of the appellee for $1200 the present appeal was taken.

The declaration, which was filed in the circuit court for Harford County on April 24, 1942, originally contained three counts the first two being common counts--(1) for work and labor and (2) for money had and received--and the third being based on the written contract. Under date of May 11, 1942, the defendant filed the general issue plea to the first and second counts and demurred to the third. According to the docket entries, issue was joined on the plea on May 25, 1942, and on the following December 14th the demurrer was sustained, with leave to amend within five days. The plaintiff (appellee) did not amend and so the case remained at issue as to the first two counts. On November 8, 1943, after the case had been removed to Carroll County for trial, the defendant (appellant) filed a demand for a bill of particulars, without, so far as the record shows, withdrawing his plea, or attempting to obtain leave of court to do so, and eleven days later the plaintiff complied with this demand. It was not until June 13, 1944, that the next docket entry appears. The defendant then filed general issue pleas to the first and second counts of the narr, and on the next day the plaintiff entered a motion ne recipiatur to the pleas, which was granted by the court. To the ruling on this motion the defendant excepted, being exception number one on this appeal. No authorities are cited in support of this point, and, we take it, none can be found, for it is an elementary rule of pleading that after pleas have been filed and issue joined a demand for a bill of particulars comes too late. Poe's Pleading and Practice, 5th Ed. Vol. 2 Sec. 120; Southern Bldg. Ass'n v. Price, 88 Md. 155, 41 A. 53, 42 L.R.A. 206; White Automobile Co. v. Dorsey, 119 Md. 251, 86 A. 617. The court was, therefore, correct in refusing to receive defendant's pleas filed after issue had been joined, and this ruling had the legal effect of striking out, also, both the demand for particulars and the bill itself, as petitioned by the plaintiff when he filed his motion ne recipiatur. When the case proceeded to trial the right of recovery was based on the common counts only--the special count reciting the written contract having been eliminated at the instance of the defendant--so that the bill of particulars which elaborated on this contract was obviously out of order and the plaintiff, then suing for damages on a quantum meruit basis, could not be charged with adherence to particulars furnished in connection with a discarded theory. As expressed in Poe's Practice, supra, sec. 118:

'If improperly called for and improvidently furnished they (bills of particulars) have no effect, and the right of the parties furnishing them to recover without reference to them is well established.'

The sole issue on this appeal is, therefore, the one raised by the common counts, and, simply stated, is this:

Is the appellee entitled to recover in general assumpsit for services actually rendered in part performance of a special contract which was cancelled by the appellant?

The plain answer to that inquiry is to be found in the language of this Court in the early case of Bull v. Schuberth, 2 Md. 38, 57, as follows:

'If the special agreement has been put an end to by the defendant, or the performance of it on the part of the plaintiff prevented by some act of the defendant; in all such cases the plaintiff may resort to recovery under the common counts for whatever may be due for so much of the contract as may have been performed.'

The law on this point has become still further established by later cases dealing directly with it. Western Union Tel. Co. v. Semmes, 73 Md. 9, 21, 20 A. 127, and Boyd v. Johnson, 145 Md. 385, 389, 390, 125 A. 697.

In commenting on the case of Bull v. Schuberth, supra, and earlier cases along the same line, Judge Bryan in the Semmes case, supra, said [73 Md. 9, 20 A. 128]: 'These cases are supported by a vast amount of authority, and they announce a doctrine eminently just and reasonable.'

It is unnecessary to elaborate on this, for it must be conceded to be still the law, and, moreover, applicable to the case at bar.

The background of the contractual relations between the appellee and the appellant is made up of a series of efforts by the latter to obtain some relief from the conditions imposed upon him and his neighborhood by the establishment in that section of Harford County of the government 'Proving Ground,' comprising some 33,000 acres. According to the record, as far back as 1932 a claim had been filed in the United States Court of Claims for damages to this farm, the title to which was then in the name of appellant's wife, Helen H Palmer. The amount of this claim was $4,000, but the efforts to collect it, or any part of it, were unsuccessful. Eventually one of the neighbors and farm owners, Mr. Harry C. Holloway, became interested in promoting the claims of those who, like himself, had sustained damages in that same connection, and employed the appellee, A. Freeborn Brown, Esq., of Havre-de-Grace, as his attorney. Contracts of employment were drawn up and Mr. Holloway solicited some of his neighbors, including the appellant, to execute them so as to pool their interests as claimants under the guidance of the same attorney, the appellee. The appellant finally executed the contract of employment with the appellee as presented to him by Mr. Holloway and this paper was filed as an exhibit in the instant case. When this contract was delivered to Mr. Brown by Mr. Holloway...