Warfield v. Booth

Decision Date29 June 1870
Citation33 Md. 63
CourtMaryland Court of Appeals

Appeal from the Circuit Court for Howard County.

The defendant's third plea alleged that the plaintiff had not paid the note given in pursuance of the contract, at maturity, and still refused to pay it, and by so doing had refused to perform the stipulations by him to be performed.

To this plea the plaintiff demurred and the court sustained the demurrer. The question raised by the first bill of exceptions was the variance between the contract alleged in the declaration and that offered in evidence; that raised by the second bill was the admissibility of parol testimony in explanation of the written contract; and that raised by the third bill was as to the admissibility of the testimony to show that the plaintiff had failed to pay the promissory note at maturity. All of these exceptions are explained in the opinion of the court.

Fourth Exception.--The plaintiff offered the following prayer:

If the jury find from the evidence in the cause that the defendant made and entered into the agreement offered in evidence, and received from the plaintiff the sum of three hundred dollars and the promissory notes in said agreement mentioned, and that the defendant afterward and before the bringing of this suit, returned to Lisbon and the neighborhood thereof, and resumed his practice as surgeon and physician at said place and in the neighborhood thereof, then the plaintiff is entitled to recover in this action under the fourth count of the declaration.

The defendant asked the following instructions:

1. That there is no evidence in the cause entitling the plaintiff to recover under the first three counts of the declaration.

2. That there is no evidence in the cause entitling the plaintiff to recover under the fourth count of the declaration.

3. If the jury should find that the paper writing dated March 6th 1867, which has been offered in evidence, was executed by the defendant, yet under the fourth count in the declaration the plaintiff cannot recover, because the contract set forth in said fourth count is not the same contract offered in evidence, but materially varies therefrom.

4. If the jury find a verdict for the plaintiff, they can only find a verdict for such amount as will be an equivalent for the pecuniary loss sustained by him in his business of physician and surgeon by the abstraction of business from him by the defendant.

5. That the plaintiff can only recover in this action such sum as from the evidence the jury shall find to be the value of the practice obtained by the defendant, which would or might have been enjoyed by the plaintiff, if the defendant had not resumed the practice of his profession at and in the neighborhood of the village of Lisbon.

6. If the jury find for the plaintiff upon the fourth count, they can only find for him such sum as from all the evidence they shall find to have been the value of the practice which he took between the time when the defendant resumed his practice and the time of instituting this suit, by reason of the defendant's so resuming his practice.

The court granted the prayer of the plaintiff as also the first and sixth prayers of the defendant, but refused the other prayers of the defendant. The defendant excepted to the ruling of the court in granting the plaintiff's prayers and rejecting his second, third, fourth and fifth prayers and the verdict and judgment being against him he appealed.

The cause was argued before BARTOL, C.J., MAULSBY, GRASON and ROBINSON, JJ.

James Macubin and William M. Merrick, for the appellant.

The written agreement offered in evidence, has, in, of and by itself, all the essentials of a contract; is of that solemn nature which evinces the design to make it the repository and evidence of the final intention of the parties thereto, and is perfectly plain and intelligible, according to the ordinary and popular signification of the terms thereof; and, therefore, cannot be varied by oral testimony. 1 Greenl. Ev. secs. 275, 277, 278, 280, note 4, 281, note 3; Murray v. Spencer, 24 Md. 522; Abbott v Gatch, 13 Md. 331.

If taken alone, (unaided by oral testimony,) it is materially variant from the contract alleged in the narr. and is, therefore, inadmissible. 1 Greenl. Ev. secs. 63, 66, 68, 69; 2 Ib. sec. 11; 1 Chitty's Pl. 311.

It is void as against public policy, because general in its terms, and is of that class of contracts that courts will not so far favor as to seek, by interpretation to make them valid; especially where the terms are hard and insufficient, as in this case, if the appellee's construction of it be correct. Mitchell v. Reynolds, 1 P. Wms. 181; 1 Story's Eq. 292; 2 Waterman's Eden on Injunctions, 365-1, 366; Whitney v. Slayton, 40 Maine, 224; Shackle v. Baker, 14 Ves. Jr. 468; 2 Parsons on Contracts, 747.

The refusal to pay the note which matured in March, 1868, and the accompanying defiance, was a rescission or abandonment of the contract, or an authority to the appellant so to regard it, in so far at least as to preclude any right of action on the contract by the appellee. 2 Parsons on Contracts, 517, 678, 679; Rodemer v. Hazlehurst, 9 Gill. 293.

The acceptance of a note is not an absolute payment or extinguishment of a debt, without an express agreement so to receive it, even though a receipt is given for the debt. Md. & N.Y. Coal & Iron Co. v. Wingert, 8 Gill, 177; Glenn v. Smith, 2 G. & J. 512, 1 Parsons on Cont. 464, notes m & n.; 2 Greenl. Ev. secs. 136, 136 a.; Cline v. Miller, 8 Md. 285; Beall v. Pearre, 12 Md. 566.

The defendant was entitled to recoup the amount due on the notes. Waterman on Set-Off, secs. 416, 421, 427, 431-433, 436, 488; Abbott v. Gatch, 13 Md. 332; Stewart v. Rogers, 19 Md. 117, 118; Balt. M. Ins. Co. v. Dalrymple, 25 Md. 309; Dowler v. Cushwa, 27 Md. 367.

If there was a right to recover at all, the true measure of damages was the value of the good will as fixed by the agreement, less a fair proportion of that value, for the time the appellee enjoyed its benefits, and less also the amount due on the notes. Sedgwick on Damages, 103, 105, 106, 295-299; Whitney v. Slayton, 40 Maine, 224; Middlekauff v. Smith, 1 Md. 341; Abbott v. Gatch, 13 Md. 332, 333; Cooke v. England, 27 Md. 35; Rodemer v. Hazlehurst, 9 Gill, 293-296.

Thomas Donaldson and George W. Sands, for the appellee.

Upon the authority of all the cases both at law and in equity, the good will and practice of any profession, craft or trade, is a subject of bargain and sale. Hitchcock v. Crocker, 6 Ad. & El. 453; Butler v. Burleson, 16 Vt. 178; Davis v. Mason, 5 Term, 118; Burns v. Guy, 4 East, 190; Mitchell v. Reynolds, 1 P. Wms. 182. There was no material variance between the agreement offered in evidence, as set out in the appellant's first exception, and the alleged contract, as declared upon by the plaintiff in the court below, and, therefore, the written agreement was admissible in evidence.

The testimony set out in the appellant's second bill of exceptions, was properly admitted, not as explaining, altering or varying the terms of the agreement, but simply as fixing the vicinage over and around which the practice of the appellant extended--as showing the subject-matter to which the contract referred. The contract entered into by the parties was limited to certain reasonable bounds--being the actual extent of the appellant's practice--and, therefore, the contract was not against public policy. Mitchell v. Reynolds, 1 P. Wms. 181, 182.

The evidence offered by the defendant to maintain the issues on his part joined, set out in his third bill of exceptions, was properly rejected, upon the ground that actions for damages are not subject to set-off or recoupment on account of money alleged to be due on contracts. Slayback v. Jones, 9 Ind. 470; Cram v. Dresser, 2 Sandf. 120; 39 Maine, 429; Pierce v. Hoffman, 4 Wis. 277; Phillips v. Keifer, 2 Met. (Ky.) 478; Waterman on Set-Off, 154-156, 158, 160-163.

Bartol C.J., delivered the opinion of the court.

This action was instituted by the appellee, who recovered exclusively upon the fourth amended count of the declaration, the court below having instructed the jury that there was no evidence entitling him to recover under the other counts.

The fourth avers that the defendant sold to the plaintiff "his good will of practice as surgeon and physician at and in the neighborhood of the town of Lisbon, in Howard County," and agreed "that he, the said defendant, would quit the said practice on the 1st of May, 1867, in favor of said plaintiff."

The contract offered in evidence is in writing as follows:

"Article of agreement entered into this 6th day of March, 1867, by Dr. M. W. Warfield, on the one part, and Dr. William Booth, on the other, hereby said Warfield sells to said Booth his good will of practice for the sum of one thousand dollars, three hundred in hand paid, and his notes for one and two years for the remainder. Said Warfield to quit the practice on the 1st day of May, 1867, in favor of said Booth. The proceeds of the co-partnership, until the first of May, to be equally divided.

M. W. Warfield,

William Booth."

Objection was made to the admissibility of the written contract in evidence, on the ground of variance. It has been argued that it is materially variant from the contract set out in the declaration; because the latter purports to be limited in its terms to the town and neighborhood of Lisbon, while the written article is general and unrestricted, being a sale of the plaintiff's good will of practice without any restriction, and an agreement to quit the practice generally which, it is contended, besides being variant from the contract declared on, is void as...

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