Strohecker v. Schumacher & Seiler, Inc.

• Decision Date: 28 June 1945
• Docket Number: 66.
• Citation: 43 A.2d 208,185 Md. 144
• Parties: STROHECKER v. SCHUMACHER & SEILER, Inc.
• Court: Maryland Court of Appeals

43 A.2d 208

185 Md. 144

STROHECKER v. SCHUMACHER & SEILER, Inc.

No. 66.

Court of Appeals of Maryland

June 28, 1945

Appeal from Court of Common Pleas of Baltimore City; J. Craig McLanahan, Judge.

Action by Schumacher & Seiler, Inc., against Joseph J. Strohecker to recover moneys due for goods sold, work done, and materials provided, on accounts stated, and on defendant's promise to pay the sum evidenced by an itemized account. Judgment for plaintiff, and defendant appeals.

Reversed without a new trial.

Murray MacNabb, of Baltimore, for appellant.

Eldridge Hood Young, of Baltimore (C. Morris Harrison, of Baltimore on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN HENDERSON, and MARKELL, JJ.

MARBURY Chief Judge.

This is an appeal from a judgment on verdict entered in the Court of Common Pleas of Baltimore City in favor of the plaintiff (appellee) for the sum of $1283.70 against the defendant (appellant). Appellant's motion for judgment n.o.v. was overruled. His brief contains an assignment of five alleged errors listed as follows:

1. The overruling of the defendant's demurrer to the plaintiff's replication, and the ruling that the defendant's special plea was bad upon demurrer mounting up to first error in pleading and the striking out of all subsequent pleadings, whereas defendant contends that the declaration was bad as changed by the plaintiff's replication.

2. The refusal of the Court to require complete answers to interrogatories filed by the defendant.

3. The rulings on evidence and prayers.

4. The refusal of the defendant's motion n.o.v.

5. The judgment for the plaintiff.

Appellant's appendix includes only the declaration, the pleas replication, interrogatories, the Court's charge to the jury, and the docket entries showing the verdict and the judgment. Appellee's brief had no appendix.

When we passed Rule 36 of this Court, doing away with the necessity of printing the record on appeal, it was done with the intention of decreasing the cost of appellate litigation. For that reason the only things required by that rule to be printed were the judgments, decree or order appealed from, and any opinion or charge of the Court. But by Rule 39, it was stated that the appendix to the appellant's brief, in addition to the above requirements, should contain such part of the record as appellant desired the Court to read. In the case before us, as will subsequently appear, the most important contention of appellant is the lack of adequate evidence to take the case to the jury. Yet he nowhere prints in the appendix to his brief the evidence bearing on the question he raises. This Court would be entirely justified in not deciding this question at all, because the appellant has not indicated by printing it, that he desires us to read this evidence and we could not pass upon the point without examining the testimony. We will not take such a drastic step in this case because the rule is new in this Court, although it has been in effect in the Federal Court for a number of years. However, in the future, we do not intend to pass the one typewritten copy of the record from member to member of this Court so that each one may hunt up for himself what the appellant is discussing in his brief. The parties are each required to print those parts of the record they want the Court to consider, and they should not be surprised if, in the future, the Court examines only the record printed in the appendices and decides cases on these printed portions alone. It is not our desire to limit ourselves to this, and we hope it will not become necessary, but we do not intend to permit counsel to impose upon us the burden of work, which should have been done by them.

The principal question in this case is whether appellant's demurrer prayer and his motion n.o.v. should have been granted. The declaration is on the common counts for goods bargained and sold, work done and materials provided and for money found due on accounts stated, and a fourth count that the defendant assumed and promised to pay the sum evidenced by the itemized account, but failed and refused to pay the same. General issue pleas were filed, and also a third plea which eventually was stricken out, so that the case was tried on the four counts and the general issue pleas. The claim of the plaintiff is that the goods, for whose payment the suit is brought, were sold and delivered to Govans Plumbing and Heating Company, a corporation, for use in the construction of the Catonsville Post Office. They were billed originally to the Company but in the early part of the year 1940, in the law offices of one of plaintiff's counsel, the appellant orally agreed that the Post Office job had not been completed by the Company, and that if the plaintiff would forbear bringing suit, enforcing a lien or taking other action to collect the balance due, the appellant would pay the amount due at the rate of $100 each month, and in the meantime take over and complete the Post Office job. That plaintiff did forbear and thereafter on June 14, 1940, was paid $50 on account and on July 15, 1940, was paid $50 on account and on November 11, 1940, was paid $50 on account, leaving unpaid the balance sued for. The question which we have to consider in this case, is not whether the appellant undertook without benefit to him to pay the debt of another, because it is not claimed there is anything in writing sufficient to make such promise enforceable. It is whether appellant made an original promise to pay this debt for a consideration moving to him.

The testimony relied on by the appellee is that of Mr. Schumacher, its president, and of Mr. Harrison, its attorney. Mr. Schumacher testified that the appellant and a Mr. Joseph E. Brown were the parties connected with the Catonsville Post Office job. They had personal differences and the account was getting behind, and after numerous discussions with both of them, at the witness's suggestion they came to the office of Mr. Harrison, because 'I told them we would have to take some action because the lien law was a factor in the case and we wanted to make sure we had the protection.' Appellant brought Mr. MacNabb, his attorney, along 'and at that time there was a question of the assets of the Company, there were assets there, there were trucks and materials and such things. * * * And there was a question of the division of the assets and Mr. Brown stated 'if he was going to take over the responsibilities of the Company he would want the assets.' There was a discussion pro and con, but it wound up by the fact that Mr. Brown said 'Well, give me my tools and you can take over everything else here, assume the obligation of the Company had I will go on out and you can have everything.' That was perfectly agreeable to Mr. Strohecker.' Mr. Schumacher further testified: 'Well, after that discussion, a decision was made that Mr. Strohecker was to take over the business and assets of the Company. Strohecker made mention of the fact that the money wasn't available, wasn't ready to meet the obligation.' In answer to a question by the Court the witness testified that all the various items sued for had been bought by the Govans Plumbing and Heating Company. He said to Mr. Strohecker 'Well, you are going to continue to buy materials, you will need materials to finish this job, and if the cash isn't available I will make it easy. You give me a note and when the note becomes due, pay approximately $100 on the note, discount your current purchases and we will go along that way.' The witness testified that it was perfectly agreeable to Mr. Strohecker and he appreciated it and he said he could work it out very nicely. The witness also said '* * * and there was a paper to be drawn up stating those facts.' It does not appear from the record that any paper was ever signed by anybody, but there is in the record, as defendant's exhibit No. 3, an unsigned letter on the letterhead of Mr. Harrison, addressed to the appellant under date of February 20, 1940, which it is indicated by the words 'President of Schumacher and Seiler, Inc.,' written under the place for the signature was intended to be signed by Mr. Schumacher. This letter is as follows:

'In consideration of you giving to me a promissory note of Govans Plumbing and Heating Company, Inc. endorsed by you personally for the balance due Schumacher and Seiler, Inc., which is estimated to be between twelve hundred dollars ($1200.00) and thirteen hundred dollars ($1300.00), said promissory note to be for ninety days and to bear interest at six percent (6%) per annum, you are hereby assured that if when said note becomes due you are unable to pay the same, if you will make a small payment on account and pay the accrued interest, I will renew the same for a further period of ninety days, it being my intention to co-operate with you so long as you

...