Peoples v. Ault

• Decision Date: 26 March 1912
• Citation: Peoples v. Ault, 117 Md. 631, 84 A. 60 (Md. 1912)
• Parties: PEOPLES v. AULT.
• Court: Maryland Court of Appeals

84 A. 60

117 Md. 631

PEOPLES v. AULT.

Court of Appeals of Maryland

March 26, 1912

Appeal from Circuit Court of Baltimore City; Chas. W. Heinsler Judge.

Action by David V. Ault against David Peoples. From an order overruling a plea to a part of the bill with leave to file an amended or supplemental answer, defendant appeals. Dismissed.

James McEvoy, Jr., for appellant. J. Kemp Bartlett, for appellee.

THOMAS J.

The appellee filed a bill of complaint in the circuit court of Baltimore city, alleging that in 1904 the appellant, who was engaged in the general contracting business in Philadelphia employed the appellee as general superintendent of construction work, and agreed to pay him for such services a salary of $100 per month, his traveling and other expenses and 10 per cent. of the net profits from work superintended by him, which contract was subsequently modified to the extent of making the monthly salary $150, instead of $100 that the first work superintended by the appellee under said contract with the appellant was the construction of the Porter street sewer in Philadelphia, and that about the time that work was completed he was placed in charge of the building of a sewer in Oradell, N. J., and after its completion he took charge of the construction of a sewer in Reading, Pa., and that when the Reading sewer was completed he was sent to Baltimore to superintend the construction there of "storm water sewer Nos. 2 and 3, and sanitary outfall sewer No. 6"; that the appellee faithfully performed the duties required of him, remaining in the employ of the appellant until all of said sewers were completed; and that during that time the appellant paid him the monthly salary and his traveling and other expenses according to said contract, and also paid him $16,000, which the appellant represented to be the appellee's share of the profit realized from the construction of the sewer in Reading, Pa but that the appellant has never paid the appellee any part of the profits derived from the construction of any of the other above-mentioned sewers; that the net profit received by the appellant from the construction of the Reading sewer exceeded the sum of $160,000, and that the net profit derived from the construction of that part of the Philadelphia sewer that was built under the supervision of the appellee was at least $16,000; that the net profit realized by the appellant under the contract for the Oradell sewer was at least $125; and that the appellant realized from the construction of the Baltimore city sewers at least $15,000. The bill then alleges that the appellant has received final settlement for the work under the said several contracts, and that notwithstanding he has repeatedly promised the appellant to render him an account, showing the net profits realized from said work, and to pay him his share thereof, he has failed to do so, and that the books and accounts of the appellant showing the profits realized by him "upon each of the aforesaid sewer contracts" were kept by the appellant or his bookkeeper, and that the appellee has "no access" to them. The prayer of the bill is that the appellant be required to "discover, account, and set forth to" the appellee "the entire amount of his receipts and disbursements received and made in connection with the performance of said contracts, showing the exact amounts of profits made by the" appellant from each, and that he be required to pay to the appellee 10 per cent. of the net profits realized from the construction of said sewers, less the sum of $16,000 heretofore paid. The appellant interposed a plea to a part and filed an answer to the remainder of the bill. The plea is as follows: "The defendant, David Peoples, for plea to so much of the bill as seeks to enforce an accounting for the defendant of the profits derived by him from the construction of certain sewers in the cities of Philadelphia, Oradell, and Reading, says that the complainant's cause of action, if any he has, accrued more than three years before said bill was filed." The plea was set down for a hearing, and this appeal is from an order of the court below overruling the plea, with leave to the defendant to file an "amended or supplemental answer" within 10 days from the date of the order.

We are therefore met at the very threshold of the case by the narrow and important question whether there is an immediate right of appeal from an order overruling a plea to a part of a bill, and its determination in accordance with our view will obviate the necessity of considering any other feature of the case. It was said by Judge Alvey in Rouskulp v. Kershner, 49 Md. on page 522: "The proceeding upon a plea filed is very analogous to the proceeding upon demurrer to the bill. If the plaintiff supposes the plea to be defective either in form or substance, he may take the judgment of the court upon its sufficiency. This he does by setting the plea down for argument, instead of replying to it; for, if he pursues the latter course, he thereby admits the legal sufficiency of the plea as a complete bar, if the facts be established. Danels v. Taggart, 1 Gill & J. 311; Hughes v. Blake, 6 Wheat. 453, 5 L.Ed. 303. Upon argument of the plea it may either be allowed simply, or the benefit of it may be saved to the hearing, or it may be ordered to stand for an answer; or it may be overruled. If, therefore, as the authorities say, a plea is allowed upon argument, or if the plaintiff without argument thinks it, although good in form or substance, not true in point of fact, he may take issue upon it, and proceed to disprove the facts upon which it is endeavored to be supported, and no order of the court in merely passing upon the legal sufficiency of the plea should preclude the plaintiff the right thus to controvert the truth of the facts alleged. Story's Eq. Pl. § 697; Mitf. Eq. Pl. 353, 354." See, also, Alex. Ch. P. 59, 60, and Miller's Eq. Proc. §§ 144-147. Section 153 of article 16 of the Code (equity rule 22) provides: "If, upon the hearing, any demurrer or plea is overruled, unless the court or judge thereof hearing the same be satisfied that it was intended for vexation and delay, the defendant shall be required to answer the bill, or so much thereof as may be covered by the plea or demurrer, at such time as, consistently with justice and the right of the defendant, the same can be reasonably done," etc. And this court held in Danels v. Taggart, 1 Gill & J. 311, that an appeal did not lie from an order overruling a plea to a bill of complaint; Judge Dorsey stating: "It decides a mere question of pleading. It settles no right between the parties. 'If the plea is overruled, the defendant may insist on the same matter by way of answer.' Mitf. Plead. 248." That case is cited with approval by Chief Judge Buchanan in Roberts et al. v. Salisbury et al., 3 Gill & J. 425, and the same view is adopted in Miller's Eq. Proc. § 147. But the statement that after a plea is overruled the same defense may be made in an answer is vigorously and forcibly controverted in the case of Murray v. Coster, 4 Cow. (N. Y.) 617, where the authorities upon which the statement is supposed to rest are reviewed, and where the court held that if the plea is overruled on its merits, and not for mere formal defects, the same defense cannot be again made in an answer.

However the question with which we are...