Western Maryland R. R. Co. v. Orendorff

• Decision Date: 30 January 1873
• Citation: 37 Md. 328
• Parties: THE WESTERN MARYLAND RAILROAD COMPANY v. DAVID ORENDORFF.
• Court: Maryland Court of Appeals

37 Md. 328

THE WESTERN MARYLAND RAILROAD COMPANY v. DAVID ORENDORFF.

Court of Appeals of Maryland

January 30, 1873

Appeal from the Circuit Court for Carroll County. The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., STEWART, BOWIE and ROBINSON, JJ.

William A. Fisher, for the appellant.

The refusal to allow the contract to be read in evidence as offered in the first bill of exceptions, was based upon the fact, that it was intended to have been signed and sealed by Barry and Malone, the assignors to the appellant, as well as by the appellee, and that not having been executed by them it was not binding upon the appellee, who had signed and sealed it. It was the covenant of the appellee, who executed the instrument, and binding upon him as such, and would support an action of covenant by the appellant against the appellee. Faster v. Mapes, Croke Eliz. 212; Pitman v. Woodbury, 3 Exch. 11; Morgan v Pike, 78 E. C. L. 473; Northampton Gas Light Co. v Parnell, 80 E. C. L. 630.

The only exception to this rule occurs in the case of leases by indenture, so far as relates to those covenants, "which depend upon the interest of the lease, and are made because the covenantor has that interest." Pitman v. Woodbury, 3 Exch. 11.

It has been decided in Maryland, that when one party omits to execute the instrument, it is, nevertheless, admissible in evidence to control the rights of the parties, the question being only as to the form of action. Stabler v. Cowman, 7 G. & J. 284.

The appellant would have been bound, although in another form of action, by all the stipulations of the contract, especially under the evidence proposed in the third exception. Coursey v. Covington, 5 H. & J. 45; Stabler v. Cowman, 7 G. & J. 284; Newell v. Hill, 2 Met. 180.

The offer made, as stated in the second exception, was to read the contract in connection with the narr. filed by the appellee in the preceding case against the appellant. The appellee had sued in covenant in that case, and had attached the contract to the narr. as the deed upon which the suit was instituted. The appellant offered to read the narr. and contract together, as an admission of the appellee that the paper was the contract under which the work was done on the section No. 25. It was admissible for this purpose. Fishmongers' Co. v. Robertson, 5 Manning & Gr. 192; Brickell v. Hulse, 7 A. & E. 454; Gardner v. Moult, 10 A. & E. 464; Buller's N. P. 236; Citizens Fire Ins. Co. v. Doll, 35 Md. 103-4.

The court seems to have fallen into error under the idea that the same question of pleading was involved, and that the narr. and paper were inadmissible, because the appellee had abandoned the previous case, because the court was of opinion that he could not maintain covenant. But there was no question of pleading, nor any attempt by the appellant to take a position inconsistent with that in the previous case. It was the deed of the appellee, although not of the appellant.

The court was certainly wrong in refusing the offer made in the fourth exception. Whether properly executed or not, the proof shows that both parties acted with reference to the paper, and the appellee testified that it fixed the prices of the work, and the monthly estimates under which the work was paid for, were provided for in that contract, and that it was mentioned and referred to in the monthly estimates under which he had received his payments.

If it were a mere memorandum made at the time the contract was entered into, showing prices, etc., and afterwards alluded to in the course of settlements, it would be admissible.

No appearance for the appellee.

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

This appeal comes before us on four bills of exceptions taken by the defendant below, and presents only questions of evidence.

The suit is an action of assumpsit instituted by the appellee. The " narr." contains the common counts; a bill of particulars was filed, showing a claim for work done in the construction of the railroad of the appellant, on section 25.

After the testimony of the appellee had been given in support of his action, as set out in the first bill of exceptions, the appellant (first having proved the signatures thereto,) offered to read to the jury a certain paper, purporting to be articles of agreement between Michael Barry and Richard Malone, (under the firm of Dougherty, Barry & Co.) party of the first part, and the appellee, party of the second part, containing a contract on the part of the latter to perform the work of constructing and finishing "section No. 25" of the Western Maryland Railroad. The paper contains specifications of the work, the prices, and the times of payment for the same, by the party of the first part; with stipulations for the measurement of the same to be made by the engineer in charge of the work. The paper is dated the 26th of June, 1867, and is signed and sealed by the appellee only. Neither Barry nor Malone, the other parties named in the articles, signed or sealed the same; the places intended for their signatures being blank, with only the word seal written upon them.

On the back of the paper are the following indorsements, duly stamped:

"For value received, we hereby assign and set over to the Western Maryland Railroad Company, our interest in the within contract.

Witness our hands and seals, this first day of October, 1867.

Michael Barry, (Seal.)

Richard Malone. (Seal.)

Witness: Washington Dunn.

I hereby assent to the above assignment, and agree that the Western Maryland Railroad Company be subrogated to the rights of the parties of the first part to the said contract, and that the engineer of said company be substituted for the engineer of the parties...