Seybolt v. Baber
| Decision Date | 02 July 1953 |
| Docket Number | No. 173,173 |
| Parties | SEYBOLT et al. v. BABER. |
| Court | Maryland Court of Appeals |
G. Gregg Everngam, Silver Spring (Carlos L. Gartrell, Silver Spring, on the brief), for appellants.
James R. Miller, Rockville (Lee C. Miller, Rockville, on the brief), for appellee.
Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
This action in assumpsit was brought in the Circuit Court for Montgomery County by James M. Seybolt and Vernon D. George, trading as Seybolt & George, against Fred G. Baber and Mary Baber, his wife, to recover $487.55 upon an oral contract to survey a small piece of ground at the rear end of a lot situated at the intersection of Meem and Diamond Avenues in Gaithersburg.
The defendants filed general issue pleas. Mrs. Baber also filed an affidavit in defense of the plaintiffs' motion for summary judgment. She alleged in her affidavit that before the plaintiffs started the work they agreed that the cost of their services would be not less than $80 and not more than $100; that she was ready and willing to pay the maximum price of $100 quoted by the plaintiffs; and that she would consent to the entry of a judgment against her in that amount. She alleged that all of the negotiations for the employment had been conducted between her and the plaintiffs, and that her husband had no knowledge of the matters alleged in the declaration.
On June 5, 1952, the plaintiffs directed that the case be dismissed as to Mr. Baber.
On January 7, 1953, immediately before the trial of the case, Mrs. Baber confessed judgment in open court in favor of the plaintiffs for the sum of $100. The case was then tried on its merits before the Court sitting without a jury.
The plaintiffs based their claim on quantum meruit. Mr. George, one of the plaintiffs, testified that Mrs. Baber telephoned their office in Silver Spring on April 13, 1950, and told him that there was a dispute over the location of the dividing line between her property and that of a neighbor, who had warned her not to put up a fence where she contemplated. He testified that Mrs. Baber employed them to make a survey, but that she never requested them to give her an estimate of the charge for their services. He stated that on April 14 she mailed to him a plat of her property and a report of a title examiner, and subsequently she sent him the deed and other data. He thereupon proceeded to gather material preparatory to making the survey, and during the course of the preparatory 'paper work,' the defendant and her daughter came to his office and discussed the work. He testified that he and an employee of the firm inspected the property on May 28, 1950, that they began the work of surveying it on May 29, and that they completed it on June 15. He claimed that Mrs. Baber asked him on May 28 how much the work would cost, and he told her he could not tell her on account of 'the conflict in the deed and the actual loss of points on the ground.' He testified that he had no further conversation with her until after he completed the work and sent her the survey and the bill for it in December, 1950.
On the other hand, Mrs. Baber testified that when she phoned the surveyors' office in Silver Spring about the first of April, 1950, Mr. George promised her that some one from the office would come to her home to discuss the work. She said that, after waiting for some days, she and her daughter went to the surveyors' office and discussed the matter with Mr. George. In telling about their visit there, Mrs. Baber testified as follows: She further stated that, since Mr. George agreed to do the work for not over $100, she told him 'to go ahead and do it.'
Mrs. Baber then testified that in the latter part of May, 1950, Mr. George and an assistant appeared at her home and she pointed out to them the ground in dispute. She said that she heard nothing further from the plaintiffs until January, 1951, when she received a bill for $757.55. She phoned to their office and told Mr. Seybolt that she would not pay the bill, as Mr. George had promised that the cost of the survey would not be more than $100. She added that she told him that she 'would put the check in the mail that day if they would accept that as payment.' She heard nothing further, however, until July, 1951, when she received a bill for $487.55 with an explanation that the previous bill was incorrect due to a mistake of $270 in addition. Mrs. Baber was corroborated by her daughter.
The trial judge found in favor of the defendant, thus leaving standing the judgment for $100 in favor of the plaintiffs. The plaintiffs are objecting here to that judgment.
The appellee filed a motion to dismiss the appeal on the ground that the appellants failed to include any of the testimony in the appendix to their brief. The Court of Appeals adopted Rule 36, putting an end to the necessity of printing records on appeal, with the object of reducing the cost of appellate litigation. For that reason the only things which the rule requires the appellant to print as a part of the appendix to his brief are the judgment, decree or order appealed from, and any opinion or charge of the Court. But Rule 39 states that the appendix to the appellant's brief shall contain, in addition to the above requirements, 'such parts of the record as he desires the Court to read.'
This Court has repeatedly emphasized the necessity of printing all the testimony material to the issue. Where the Court of Appeals must consider all material evidence in order to decide the question...
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