R.B. Tippett & Bro. v. Myers

• Citation: 96 A. 678,127 Md. 527
• Decision Date: 14 January 1916
• Docket Number: 76.
• Parties: R. B. TIPPETT & BRO. v. MYERS.
• Court: Maryland Court of Appeals

96 A. 678

127 Md. 527

R. B. TIPPETT & BRO. v. MYERS.

No. 76.

Court of Appeals of Maryland

January 14, 1916

Appeal from Baltimore City Court; James P. Gorter, Judge.

Action by Olivia R. Myers against R. B. Tippett & Bro. From a judgment for the plaintiff, defendants appeal. Reversed without awarding new trial.

Argued before BOYD, C.J., and BURKE, THOMAS, URNER, and STOCKBRIDGE JJ.

George W. Lindsay and Eugene O'Dunne, both of Baltimore (Donald B. Creecy, of Baltimore, on the brief), for appellants. J Marsh Matthews and Laurie H. Riggs, both of Baltimore, for appellee.

BOYD C.J.

The appellee sued the appellants in assumpsit on the common counts, and attached to the declaration there was an account as follows:

"Baltimore, Md., July 10, 1914.

Richard B. Tippett and James E. Tippett, copartners trading as R. B. Tippett & Bro., to Olivia R. Myers, Dr.

May 11 To cash collected and retained ............................... $800.00

1908.

To interest on same from October 1, 1909 (the interest on

said sum having been paid to that time), to date............ "

The record states that annexed to the declaration was an affidavit under the Acts of 1886, chapter 184, which with amendments is the Practice Act of Baltimore City. Section 312 et seq. of article 4 of Public Local Laws. The defendants plead, separately, the pleas of never indebted, never promised, and limitations. The plaintiff joined issue on the first and second pleas and replied to the third, alleging fraud. The defendants filed rejoinders to the replications to their pleas and issues were joined. The trial resulted in a verdict for plaintiff for $800, and this appeal was taken from the judgment rendered thereon.

There are nine bills of exception presenting rulings on the evidence, and a tenth containing the rulings on the prayers. The plaintiff offered six prayers, the first and fourth of which were granted, and the others rejected. R. B. Tippett offered five, and J. E. Tippett four, separately, and they offered one jointly, which is marked defendants' sixth prayer, all of which were rejected.

We will first consider the prayers. The plaintiff's first is as follows:

"The plaintiff prays the court to instruct the jury that the partnership of the defendants, Richard B. Tippett and James E. Tippett, having been alleged in the declaration filed by the plaintiff, and not having been denied by the next succeeding pleading of the defendants, or either of them, said partnership is admitted for the purpose of this cause."

As the suit was brought under the practice act in force in Baltimore city, the prayer ought to have referred to the affidavit as well as the declaration, as the statute so requires in order to put the defendants in default in not pleading, etc., but apparently in drawing it the plaintiff had in mind the general law. Article 75, § 24, subsec. 108, of the Code of Public General Laws. The affidavits are not in the record, but if those of the defendants stated what is required by the local law, it would not have been necessary to have pleas denying the partnership. Farmers', etc., Bank v. Hunter, 97 Md. 148, 54 A. 650; Horner v. Plumley, 97 Md. 271, 54 A. 971.

But, regardless of that technical question, in our judgment the prayer was not proper under the facts of this case, notwithstanding it uses the language of the statute that "said partnership is admitted for the purpose of this cause." The attorneys for the appellee seem to be of the opinion that the prayer contained all that is required, but we do not so understand the meaning of that expression.

In Fifer v. Clearfield Coal Co., 103 Md. 1, 62 A. 1122, the suit was not brought under the local law, and the court passed on the meaning of article 75, § 24, subsec. 108, which provides that:

"Whenever the partnership of any parties, or the incorporation of any alleged corporation, or the execution of any written instrument filed in the case is alleged in the pleadings in any action or matter at law, the same shall be taken as admitted for the purpose of said action or matter, unless the same shall be denied by the next succeeding pleading of the opposite party or parties."

The narr. alleged that the appellant--

"entered into a written contract with the said defendant, by said Rogers, Holloway & Co., the agents of the said defendant, who were then and there *** duly authorized by said defendant to execute said contract in its behalf."

The written contract was then set out verbatim in the declaration, and the appellant contended that as it had not been denied by the appellee by its next succeeding pleading, it must be taken as admitted for the purpose of the action, as well as the agency of Rogers, Holloway & Co. This court said:

"Such a construction, however, is broader than that warranted by the terms of the statute, which are: [Quoting the statute.] The words 'the same shall be taken as admitted for the purpose of said action or matter' refer to the allegations of 'partnership of any parties,' 'the incorporation of any alleged corporation,' and 'the execution of any written instrument' alleged in the pleadings. The failure to deny any of these in the next succeeding pleading operates as an admission against the opposite party."

Then, after quoting from Banks v. McCosker, 82 Md. 525, 34 A. 539, 51 Am. St Rep. 478, at some length, the court said:

"The failure of the appellee to make denial of the execution of the contract as set out in the declaration had the effect only of relieving the appellant of proving it, but it did not admit that Rogers, Holloway & Co. were the agents of the appellants with authority to bind them as charged in the narr. That was put in issue by the pleas, and was open for proof as any other fact that had been alleged."

So, in this case, the fact that the defendants were partners is admitted, but that does not admit that the suit was on a partnership transaction, or that what one partner did in reference to it necessarily bound the other. The defendants could not truthfully have sworn that they knew, or had good reason to believe, such allegation of copartnership to be untrue as the Practice Act provides. The failure to deny the partnership had the effect only of relieving the appellee of proving it, to follow the language used in Fifer's Case. Surely if this court was right in that case, where the declaration expressly alleged that the written contract was entered into with the appellee by Rogers, Holloway & Co., the agents duly authorized by them to execute it, in saying that their failure to deny the execution did not admit that these parties were the agents with authority to bind them, the failure to deny the partnership could not take from these defendants the right to prove that it was not a partnership transaction. The case of Whitman et al. v. Wood, 6 Wis. 676, is quite analogous, but we need not further refer to it. The prayer as granted was misleading, even if the lower court did not intend to go as far as the appellee now contends is the result of the failure to deny the partnership; and there was error in granting it, particularly as no other prayer was granted which limited or explained its meaning.

The plaintiff's fourth prayer was also defective, if for no other reason, from the fact that it entirely omitted all reference to the $10 which the plaintiff received from James E. Tippett, which had been paid him by Mr. Yardley. It said nothing about the stock which the appellee still holds, and which so far as the record shows may still have some value, but in view of the conclusion reached by us in reference to the defendant's first prayer, it would serve no good purpose to discuss that.

The first prayer offered by Richard B. Tippett was as follows:

"The defendant, Richard B. Tippett, prays the court to instruct the jury that under the pleadings there is no evidence in this case legally sufficient to entitle the plaintiff to recover against this defendant, and therefore the verdict of the jury must be for the defendant."

In our judgment, that prayer should have been granted. In the first place, the statute of limitations was a complete bar to the action against him, unless the plaintiff was kept in ignorance by the fraud of the defendant. The replication to that plea alleges that the plaintiff--

"was kept in ignorance by the fraud of the said defendant for a long time of the cause of action which she had against the said defendant, and that she brought this action within three years from the time at which she could by usual or ordinary diligence have discovered the fraud."

There is no evidence whatever of any fraud on the part of Richard B. Tippett, even if there was on the part of James E. Tippett, which we will consider later; yet the replication alleges that she was kept in ignorance "by the fraud of the said defendant"--it being a reply to the separate plea of Richard B. Tippett. The uncontradicted evidence shows that he did not know of the transaction between James E. Tippett and R. T. Yardley for more than two years afterwards, when he was told of it by the plaintiff herself. The plaintiff testified that when she spoke to R. B. Tippett, he said he never heard of it, and when she told him "about the matter he scolded her very much for entering into such speculation." She said he suggested that she write a letter to J. E. Tippett, which she did. That was some time in the fall of 1910; the letter is dated October 22, 1910. In that letter she wrote:

"First, in regard to the Yardley loan. I must ask you to have this matter settled immediately. A rather prominent lawyer to whom I mentioned this loan, after he has heard that in the first place, said, you should never have allowed me to consider this loan for a moment, but that as long as it has

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