Smith v. Woman's Medical College of Baltimore City

• Decision Date: 24 March 1909
• Parties: SMITH v. WOMAN'S MEDICAL COLLEGE OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

72 A. 1107

110 Md. 441

SMITH v. WOMAN'S MEDICAL COLLEGE OF BALTIMORE CITY.

Court of Appeals of Maryland

March 24, 1909

Appeal from Superior Court of Baltimore City.

Action by Joseph T. Smith against the Woman's Medical College of Baltimore City. From a judgment for defendant, plaintiff appeals. Reversed.

H Findlay French and Thomas Mackenzie, for appellant.

John L G. Lee, for appellee.

WORTHINGTON J.

The action in this case was commenced, under the practice act of Baltimore City, on the 7th day of November 1907, returnable to the November return day, upon the following instrument of writing, which was attached to the declaration: "$452. Baltimore, Md., June 1, 1900. For value received, the Woman's Medical College of Baltimore promises to pay to Joseph T. Smith, M. D., within two years, dating from June 1st following the time at which he leaves the board, after his removal or resignation from the board of trustees of the said college, or in case of his death, promises to pay within the time above noted, to his executors or personal representatives, the sum of four hundred and fifty-two dollars ($452). It is understood and agreed by the holder hereof that this note is nonnegotiable and nonassignable except as herein set forth, and that it shall bear interest at the rate of 6 per cent. per annum, payable July 15th of each year. Richard Henry Thomas, M. D., President. Joseph T. Smith, M. D., Secretary. [Corporate Seal Woman's Medical College of Baltimore.]" Ten-cent internal revenue stamp affixed. Attached to the declaration was an affidavit as required by Acts 1886, p. 304, c. 184. Although the declaration (which we will request the reporter to set out in full in the report of this case) concludes, as a narr. in assumpsit, with a claim of $1,000 damages, yet it seems to have been intended as a declaration in debt on specialty, for it sets forth that the defendant "by its writing obligatory under seal" promised to pay, etc. The words "writing obligatory" themselves imply a written contract under seal. It is a term seldom, if ever, applied to simple contracts. 2 A. & Eng. Ency. 758. To this declaration the defendant pleaded "that it never was indebted as alleged," and "that it did not promise as alleged," with an affidavit to the effect that every plea so pleaded was true, and that the defendant admitted none of the plaintiff's claim to be due and owing, but disputed it all, etc. Subsequently the plaintiff moved for a judgment by default for want of a sufficient plea and affidavit of defense; but the court overruled the motion, and, as the plaintiff refused to join issue upon the defendant's pleas or either of them, judgment for the defendant for costs was entered. From this judgment the plaintiff has appealed.

The plaintiff pursued the course heretofore approved by this court, to test the sufficiency of the defendant's pleas, for, had he joined issue thereon, he would thereby have withdrawn the case from the operation of the practice act, and placed it upon the footing of a suit at common law. Traber v. Traber, 50 Md. 1; Hutton v. Marx, 69 Md. 252, 14 A. 684; Laubheimer v. Naill, 88 Md. 177, 40 A. 888. "From such a judgment an appeal will lie, for as to the plaintiff it is a final judgment." Henderson v. Insurance Co., 90 Md. 47, 44 A. 1020. The appellee's motion to dismiss the appeal must therefore be overruled.

The main question presented to this court is whether the lower court was right in refusing the plaintiff's motion for judgment by default against the defendant. In considering this question, it will be helpful to determine, first whether the paper writing sued on is a specialty or a simple contract. It will be observed that, while the corporate seal of the defendant corporation is affixed at the bottom of the paper, no reference is made to the seal in the body of the instrument, nor is there anything on the face of the paper to indicate that it was intended to be a bond or specialty. In the case of Jackson v. Myers, 43 Md. 452, this court, speaking through Judge Alvey, said: "The symbol or printed representation of the seal, if it be conceded to be a sufficient representation of a seal, was not printed on the note to restrain its negotiability, nor to change it into a...