Pioneer Oil Heat, Inc. v. Brown

• Decision Date: 18 December 1940
• Docket Number: 46.
• Citation: 16 A.2d 880,179 Md. 155
• Parties: PIONEER OIL HEAT, Inc., v. BROWN et al.
• Court: Maryland Court of Appeals

16 A.2d 880

179 Md. 155

PIONEER OIL HEAT, Inc., v. BROWN et al.

No. 46.

Court of Appeals of Maryland

December 18, 1940

Appeal from Circuit Court No. 2 of Baltimore City; Joseph N. Ulman Judge.

Suit by Daisy Brown and another against the Pioneer Oil Heat, Inc. to set aside judgment rendered on notes given in payment of oil burner, oil tank and accessories. From an order overruling demurrer to the bill of complaint, the defendant appeals.

Order reversed, and bill dismissed.

Leon H. A. Pierson and Morton J. Hollander, both of Baltimore, for appellant.

Benjamin L. Wolfson, of Baltimore (David Hettleman, of Baltimore, on the brief), for appellees.

Argued before BOND, C.J., and PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

MITCHELL Judge.

This is an appeal from an order of the Circuit Court No. 2 of Baltimore City, overruling a demurrer to the bill of complaint of the appellees.

In substance the bill sets forth that the appellees, Daisy Brown and Oliver Brown, are seized and possessed, as joint tenants of certain real estate located in the City of Baltimore, and that during the month of July, 1935, Daisy Brown entered into a contract with the appellant for the installation on said premises of an oil burner, oil tank and accessories, including a hot air furnace; it being alleged that forms of proposal and conditional contract of sale for the installation were submitted only to Daisy Brown, Oliver Brown not being a party to the transaction. It is then charged that the appellant made the installation, but did so in an unworkmanlike and imperfect manner and refused to perfect the plant, although called upon by Daisy Brown so to do; that in consequence, the proposed heating system did not properly function; whereupon the appellant, having failed to comply with its guarantees, warranties and representations, after reasonable notice of the defect, was notified by Daisy Brown to remove the heating plant from the premises, claiming that it did not measure up to the uses and purposes for which it was purchased, and advising that the installment payments under the contract would cease. After detailing damages to their property incident to the faulty installation of the plant, the bill recites that some time between July, 1935, and April 8, 1936, the appellant assigned certain paper writings purporting to be confessed judgment notes of the appellees executed in connection with the purchase of the heating plant, to the National Marine Bank of Baltimore; upon which said notes the appellees made monthly installment payments from time to time to said bank, meanwhile complaining of the defects in the plant, and finally ceasing to make payments upon reaching the conclusion that the appellants did not intend to make good the imperfections complained of. It is further alleged that during the discussions concerning the failure to make further payments to the bank, the bank exhibited to Daisy Brown said confessed judgment notes; that up to that time she had not understood the notes to be of that character; that they bore the signature of 'Oliver Brown' which had been forged by an agent of the appellant, and that notwithstanding the fact that said bank was fully cognizant of the forgery, it proceeded through its attorneys to enter judgment thereon for the sum of $508.50, including a usurious 'late charge' of 5 per cent, plus attorney's fees and court costs, against both appellees, in the Superior Court of Baltimore City.

On behalf of Oliver Brown the bill denies that he ever wrote or authorized others to write his signature to any of the papers connected with the above transaction, nor did he ratify or authorize the same.

Among other allegations the bill sets out that the Federal Housing Administration guaranteed to the bank the payment of said notes; that after the date of the entry of said judgment, to wit, April 8, 1936, the said bank and the Federal Housing Authority assigned and transferred the judgment to the Pioneer Oil Heat, Inc., whereby that corporation was placed in the same position as if said judgment notes had never been assigned. And it is then alleged that the appellees: 'made an attempt in the Superior Court of Baltimore City, by a petition alleging the fraud hereinbefore set forth, to strike out and set aside the confessed judgment against your orators and that on or about March 28, 1940, the motion filed by and on behalf of your orators in the Superior Court of Baltimore City was overruled without in any way giving opportunity for the facts to be known or presented to the court; nor was even an inquiry made by said court as to the true facts and equities in the situation, thus depriving your orators of their right to be free and unencumbered from the odium and lien of a judgment against them and their property.'

Alleging further that the complainants were without financial means wherewith to appeal from the action of the court in overruling the motion to strike out the judgment; that the instant suit was brought for the purpose of avoiding circuity and multiplicity of actions between the litigant parties that the appellees had no complete and adequate remedy at law, and that a writ of fieri facias had been...