Ryan v. Canton Nat. Bank
| Decision Date | 14 June 1906 |
| Citation | 63 A. 1062,103 Md. 428 |
| Parties | RYAN v. CANTON NAT. BANK OF BALTIMORE COUNTY. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Charles E. Phelps Judge.
Action by Timothy Ryan against the Canton National Bank of Baltimore County. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE SCHMUCKER, and JONES, JJ.
Thomas G. Hayes, for appellant.
S. S Field, for appellee.
This is an action brought by Timothy Ryan in the circuit court of Baltimore county against the Canton National Bank of Baltimore County to recover for services rendered by him; the case being removed for trial to the superior court of Baltimore City. The declaration contained only the common counts, with which was filed the following bill of particulars:
Canton National Bank of Baltimore County, Md., To Timothy Ryan, Jr., Dr. To 24 months and 23 days services conducting the tin can boxes and $8,874 specialty business at 714 Water St., Baltimore, Md., from February 71 27, 1899, to March 21 1901, at $358.33 1/3 per month Cr. By cash, 24 months and 23 days monthly payments from February 27, 1899, to March 21, 1901, at sundry times on acct. of said services ................................................ $2,476 67 August 22, 1901. By cash on account of said services per receipt ..................................... 1,000 00 3,476 67 -------- Balance due ............................................ $5,398 04
The pleas were: "Never promised as alleged"; "never indebted as alleged"; and "the alleged cause of action did not accrue within three years prior to the bringing of this action." Issue was joined on the first and second pleas, and to the third plea there was a replication that the cause of action did accrue within three years before the suit was brought. The verdict and judgment was for the defendant, and the plaintiff has appealed.
During the course of the trial four exceptions were taken to rulings upon the evidence, and a fifth exception to the ruling upon the prayers and upon the plaintiff's special exceptions to defendant's prayers, and the plaintiff's motion to exclude certain testimony which had been admitted in evidence subject to exception. It appears from the bill of particulars filed with the declaration that the services rendered were terminated March 21, 1901, and the suit was instituted August 11, 1904. It also appears that all the monthly payments made for said services were made before August 11, 1901, and there is no claim made by the plaintiff that any person in behalf of the bank ever made any new promise to pay for said services, or ever made any express acknowledgment of existing indebtedness therefor. It is contended, however, by the plaintiff, that the sum of $1,000 which is credited in the bill of particulars on August 22, 1901, and which was in fact paid on that day, was a recognition or acknowledgment of such existing indebtedness, and that the bar of the statute of limitations, which would otherwise prevent recovery by the plaintiff, was thus removed. The defendant contended that there was an express contract for the rendition of these services for the sum of $100 per month (which is shown by the bill of particulars to have been fully paid), and that the sum of $1,000 subsequently paid, on August 22, 1901, was a gratuitous payment, made solely because the plaintiff had become dissatisfied with his contract, and had appealed to the defendant for additional compensation after the termination of said services, not as a matter of right, but as of favor. The plaintiff's contention is that there was no express contract or agreement as to the amount of compensation he was to receive for his services, and the monthly rate of compensation charged by him in the bill of particulars is based upon the profits of the business to the defendant during the rendition of these services as computed by the plaintiff himself. The plaintiff submitted two prayers presenting his theory of the case, both of which were refused, and the defendant submitted two prayers, both of which were granted.
Whether there was, or was not, an express contract, the plea of limitations must prevent recovery by the plaintiff, unless the payment of $1,000 made August 22, 1901, is held to be a recognition of existing indebtedness, and that question will not be considered, as presented by the defendant's following granted prayer: "The court instructs the jury that, according to the bill of particulars of plaintiff's claim filed among the pleadings, and the testimony of the plaintiff, the plaintiff's cause of action accrued more than three years before the bringing of this suit (and) that there is in this case no evidence legally sufficient to prove any new promise, or acknowledgment of the plaintiff's claim sufficient to remove the bar of the statute of limitations set up by the defendant's third plea, and therefore the verdict of the jury must be for the defendant." The plaintiff testified that in February, 1899, the firm of Kirwan & Tyler was engaged in the manufacture of tinware, and, being heavily indebted to the Canton National Bank, an arrangement was entered into between the said bank, Kirwan & Tyler, and himself, by which they sold to him their plant, business, and stock in trade, for the sum of $6,000, and that thereafter and up to March 21, 1899, the business was conducted in his name, but for the sole benefit and account of said bank; that this $6,000 was paid by him from the proceeds of his note discounted by said bank for that purpose, and that this note was subsequently paid out of the proceeds of said business; that he entered into the service of the bank on February 27, 1899, and left it on March 21, 1901, when the business was sold to the American Can Company; that his duty was to manage and supervise the whole business, and that, when money was needed beyond the cash receipts of the business, it was procured upon his notes discounted by said bank with the indorsement of his brother Wm. P. Ryan, all of which notes were paid out of said business; that in October, 1899, in order to guard against the involving of his estate in event of his death, an agreement in writing was executed by the bank stating that the plaintiff had purchased said business at the instance and request of the bank, and agreeing in consideration thereof "to hold safe and harmless, and to fully protect and satisfy, the said Timothy Ryan, Jr., because of his purchase of said business, and the said William P. Ryan, because of his present and future indorsements on account of said business, it being the intention of this paper to fully protect the said Timothy Ryan, Jr., and William
P. Ryan, and to save harmless from any loss, injury, or liability that may come to them, or be imposed on them by reason of the purchase and conduct of said business so purchased from Kirwan & Tyler." He further testified that the first arrangement above mentioned was made through the Kirwan & Tyler committee of the bank, composed of Mr. Horner, Mr. Furst, and Mr. Kendig; and that, when the agreement was executed, Mr. Horner said: "I wish you success, and, when the Ryan boys are satisfied, we will turn the business over to Kirwan & Tyler." That, when he first began the business, he drew $2.50 a day, but after one or two weeks he went to see Mr. Furst and told him he could not conduct that business. That he had to have living expenses, and Mr. Furst suggested that he draw $100 a month for living expenses, which he did. That this did not compensate him at all, and that he did not look upon it in that light. In reply to a question from his counsel how he arrived at the monthly charge of $358.33 in his bill of particulars, he said he considered his services as a bookkeeper were worth $150 per month, and that, as he secured a position with the American Can Company after the sale to it at $2,500 per annum upon the recommendation of the bank, in which he had no books to keep, he thought he was worth as much to the bank, and, at that rate, $4.300 a year, the monthly payments would be $358.33.
Being asked what were the circumstances of the payment of $1,000 to him credited in the bill of particulars, he said he received that check about August 19, 1901, and was astonished with the small compensation for his services, and he produced a copy of the receipt therefor, which was admitted in evidence subject to exemption, and which was as follows He said that after receiving this check he spoke twice or three times to Mr. Furst "about the meagerness of his reward," and that Mr. Furst said he was That he knew Mr. Furst was a liberal man and did the best he could. He explained that he did not feel disposed to sue the bank until Mr. Furst left the directory, and it subsequently appeared in proof that Mr. Furst withdrew in 1902. The plaintiff produced the expense account kept by him while he conducted this business, and rendered monthly to the board of directors, which showed that during that period he regularly drew $100 per month without indicating for what this sum was drawn. He also testified that on March 22, 1901, he paid to...
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