Turner v. Spencer

• Decision Date: 17 June 1920
• Docket Number: 28.
• Citation: 111 A. 109,136 Md. 593
• Parties: TURNER v. SPENCER.
• Court: Maryland Court of Appeals

111 A. 109

136 Md. 593

TURNER v. SPENCER.

No. 28.

Court of Appeals of Maryland

June 17, 1920

Appeal from Baltimore City Court; Henry Duffy, Judge.

"To be officially reported."

Action by Leonidas G. Turner against William Spencer. From an order quashing an attachment, plaintiff appeals. Affirmed.

George Washington Williams, of Baltimore (William R. Price, of Baltimore, on the brief), for appellant.

Myer Rosenbush, of Baltimore, for appellee.

THOMAS J.

The appellant in this case, Leonidas G. Turner, was engaged in the real estate business in Baltimore city, and interested in the development of suburban property. He had two sons, Percy P. Turner and Robert B. Turner, who were architects, doing business under the name of Turner Architectual Service, and who occupied his office. They prepared the building plans and specifications for those who purchased building lots from their father, and supervised the construction of the houses and in some instances took the contract for the erection of the building and sublet it to other contractors or builders. It seems that the appellant, who, as we have said, was interested in the development of the property, in order to encourage the erection of houses, would sometimes assist the builders or contractors by lending them money to meet their pay rolls and other expenses, and that the contractors or builders were paid by the owners of the houses as the work progressed upon certificates of the architects as to the amounts due under the terms of the contracts.

In September, 1919, William Spencer, the appellee, was the contractor for several houses in the course of erection on lots sold by the appellant, and among them was one for O. C Frazier and one for a Mr. Byrd, and on Friday, September 26th, the appellee went to see the appellant, who had, for several weeks, been lending him the money to carry on the contracts, to borrow $1,000 with which to meet his pay roll the next day and other pressing obligations. The appellant told him that he was very busy that day, and that he should come to see him the next day, and he would let him have the money. The following day the appellant gave him the money and took from him two papers, one in the form of a certificate signed by his son, "P. P. Turner, Architect," addressed to O. C. Frazier, certifying that the appellee as contractor was entitled to the sixth payment under the contract, amounting to $600, and a receipt for that amount signed by the appellee, and the other a similar certificate addressed to Mr. Byrd for $400, and a receipt for that amount signed by the appellee. About 10 days later the appellee was so far behind with his obligations under the several contracts referred to that he had to call a meeting of his creditors. At that meeting a committee was formed to take over and complete such of his contracts as, in the judgment of the committee, would be profitable to his creditors. The work under the Byrd contract was completed and the appellant received the $400 mentioned in the certificate and receipt given him for that amount, but the contract for the Frazier house was abandoned by the committee, and the appellant, not having received the $600 mentioned in the certificate and receipt given for that amount sued out of the Baltimore city court an attachment on original process against the appellee, the affidavit stating that the appellant had good reason to believe: First, that the appelleee had assigned, disposed of, or concealed, or was about to assign, dispose of, or conceal, his property, or some portion thereof, with intent to defraud his creditors; second, that the appellee fraudulently contracted the debt of $600 due the appellant. The attachment was laid in the hands of Robert B. and Percy P. Turner, the appellant's sons, who admitted assets in their hands to the amount of $600.40. The appellee filed a motion to quash the attachment on the ground that he had not assigned, etc., and was "not about to assign," his property with intent to defraud his creditors, and that he did not fraudulently contract the debt due the appellant. The case was heard on evidence produced before the court, and embraced in the bills of exception in the record, and this appeal is from the order of the court below, quashing the attachment.

No evidence was produced in support of the first averment of the affidavit, but the appellant relies upon the evidence offered to sustain the second allegation. The testimony of the plaintiff as to what occurred is as follows:

"That he is in the real estate business and the plaintiff in this case. That his claim arose in the following manner: Mr. Spencer was building some houses. My boys were the architects. We occupy the same offices. Spencer came in one Friday afternoon, very much downcast, said that he would have to have $1,000. There was nothing due him under the terms of the contract which my sons were handling for him, or handling in connection with him, and he set there with his head on his hands for a while very much depressed, and one of my boys asked him what he needed the $1,000 for, why should he need $1,000; certainly his pay roll was not that much. Well, he said he needed $1,000 to pay the bricklayer on Mr. Frazier's house and the plasterer on Mr. Frazier's house, and yet there was no money due him under the terms of the contract until he had completed the house up to a certain point, until the plastering was finished; he had had the previous payments in various other stages. So I think one of my boys said to me, 'Father, would you like to help Mr. Spencer?' I said, 'Why?' 'Well, it is perfectly safe; you will get this money next week when the house is at a certain state of the contract;' and Spencer spoke up and said, 'Yes; I will be $15,000 to the good when these houses are cleaned up.' When these houses are finished. And, moreover, he said that he would get certain payments next week, one on the Frazier house and another from another house to reimburse me if I would let him have the money, and as a further inducement he said he would give me 10 per cent. I said, 'Spencer, I would not take any 10 per cent. from you or any compensation whatever if I want to help you and it is perfectly safe; if you say, "I am going to get this money next week," why, I do not mind letting you have $1,000.' So I gave him the $1,000 on that representation, and he had assigned to me by the architect the payments that would be due, one payment on each of two houses, $400 on one and $600 on the other."

On cross-examination he further testified:

"At the final division (by the committee of the creditors) of whatever money was coming to Mr. Spencer I received a check for apparently my pro rata share, which check I returned. This was after the whole thing was averaged and after they had stopped work on the Frazier house, on which I was to get my $600. Q. They refused to finish the Frazier house, which is undoubtedly

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