Whitcomb v. Horman

• Decision Date: 16 November 1966
• Docket Number: No. 455,455
• Citation: 224 A.2d 120,244 Md. 431
• Parties: Martin F. WHITCOMB v. Frederick L. HORMAN and Horman Associates, Inc.
• Court: Maryland Court of Appeals

Page 431

244 Md. 431

224 A.2d 120

Martin F. WHITCOMB v. Frederick L. HORMAN and Horman Associates, Inc.

No. 455.

Court of Appeals of Maryland.

Nov. 16, 1966.

George T. Tyler, Baltimore (J. Nicholas Shriver, Jr., Baltimore, and John G. Rouse, Jr., Annapolis, on the brief), for appellant.

Dimitri P. Mallios, Washington, D. C. (Joseph L. Nellis and Philipson, Lyon & Chase, Washington, D. C., on the brief), for appellees.

Before HAMMOND, C. J., and MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

BARNES, Judge.

The appellant, Martin F. Whitcomb (Whitcomb), as plaintiff below, filed an action at law originally in the Circuit Court for Montgomery County on August 30, 1963, against the appellees, Frederick L. Horman (Horman) and Horman Associates, Inc., a Delaware corporation (the corporation), as defendants below. The declaration alleged two common counts in assumpsit for work and labor done and for money due on an account stated between the parties. It also set forth a special count reciting Whitcomb's employment by Horman in April, 1952, and later by the corporation in 1957. Whitcomb sought to recover for the value of accumulated vacations for earned and unpaid salary, for an interest in a profit sharing trust agreement and for breach of a contract by which Whitcomb was to receive a portion of the stock of the corporation. Horman and the corporation on October 1, 1963, filed an 'answer' alleged and did not promise as alleged and as 'affirmative defenses' that Whitcomb's claim was 'in whole or in part barred by the statute of limitations,' was 'eliminated by an accord and satisfaction' and that Whitcomb 'is guilty of laches.'

After the taking of depositions, the defendants filed a motion for summary judgment on February 7, 1964, on the ground that 'from the record (the depositions of Whitcomb and his wife taken October 30, 1963 and January 9, 1964 were filed in the case) there is no genuine issue of a material fact in dispute and the defendants and each of them are entitled to judgment as a matter of law.'

Thereafter, on March 20, 1965, Whitcomb filed a suggestion and affidavit of removal. On March 30, 1965, Horman and the corporation filed a motion to tax costs and fees to the plaintiff Whitcomb on the alleged ground that the case had been set for trial on March 3, 1965, and it was discovered on the afternoon of March 2, that the case had been removed unilaterally by the plaintiff's counsel from the trial calendar. It was alleged that counsel for the defendants had no notice whatever of the cancellation of the trial, that they had expended much time and effort in perparing for trial, made trips to Baltimore and elsewhere for such preparation, expending 14 hours in so doing and expending $300 in costs for preparation for trial without notice of the cancellation. It was prayed that the Circuit Court for Montgomery County pass an order taxing fees and costs of $1100 against the plaintiff prior to removal. After hearing, that court (Anderson, J.) passed an order, apparently on April 9, 1965, ¹ requiring the plaintiff to pay the defendants $300 for 'costs.' Later on April 12, 1965, Judge Anderson ordered the case removed to the Circuit Court for Prince George's County for trial, and the record was transmitted to that court.

On July 29, 1965, Whitcomb filed in the Circuit Court for Prince George's County an affidavit in opposition to the motion of Horman and the corporation for summary judgment. The motion for summary judgment was argued before Judges Bowen and Mathias on July 30, 1960, was taken sub curia. On August 10, 1965, the motion for summary judgment was granted, the order granting the motion reciting that the lower court 'after hearing arguments of counsel and after carefully reading the entire file is of the opinion that the motion should be granted.' Judgment was entered for the defendants for costs the same day. Unfortunately, counsel for neither party filed a motion under Maryland Rules 18 c and 564 b 2 to require the lower court to dictate a brief statement of its grounds for its decision nor did the lower court do this sua sponte as we recently indicated would be appropriate in Reeves v. Howar, Md., 222 A.2d 697.

The appeal to this Court was timely taken from the order of August 10, 1965, granting the motion for summary judgment and entering judgment for the defendants for costs. Whitcomb also appeals from the order of the Circuit Court for Montgomery County of April 9, 1965, allowing $300 as 'costs' against him.

Two questions are presented to us for decision: (1) was the lower court in error in granting the motion for summary judgment, and (2) was the Circuit Court for Montgomery County in error in passing the order of April 9, 1965, requiring Whitcomb to pay the defendants $300. We have concluded that both of these questions should be answered in the affirmative and the order and judgment of August 10, 1965, and the order of April 9, 1965, must both be reversed.

Maryland Rule 610 d provides for the granting of a summary judgment 'if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Recently in the case of Reeves v. Howar, supra, in construing Rule 610 we stated:

'* * * (I)n a summary judgment proceeding even where the underlying facts are undisputed, if those facts are susceptible of more than one inference, the party against whom the inference was sought to be drawn is entitled to the inference most favorable to such party's contentions.'

See also Mayor and City Council of Baltimore v. Allied Contractors, 236 Ma. 534, 554, 204 A.2d 546, 551 (1964) and Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14, 155 A.2d 691, 693 (1959).

Our review of the record and giving the plaintiff Witcomb all inferences from the depositions and from its affidavit filed in opposition to the motion for summary judgment, we find that there are several material facts in dispute.

(a)

The defendants Horman and the corporation contend that there was an accord and satisfaction reached between the parties. The depositions indicate that the corporation sent Whitcomb a check payable to his order (the amount of the check is not stated but in the brief of Horman and the corporation it is stated that the amount was $1318.69), on the back of which was a provision that the endorsement of the check would operate as a 'release' of Whitcomb's claims. Whitcomb, however, struck out the 'release,' endorsed the check for deposit only and deposited it in his account. On instructions of the defendant, the bank on which the check was drawn declined to pay it so that Whitcomb never received the money. To have an accord and satisfaction not only must the offer of money be made in full satisfaction of the creditor's claim, but must also be accompanied by such acts or declarations as will amount to a condition that if the money is accepted it is to be in full satisfaction and the creditor understands that this will be the effect of his acceptance of the money. Mercantile Trust and Deposit Co. v. Rode, 137 Md. 362, 377, 112 A. 574, 580 (1921). Whitcomb's acts are inconsistent with an accord and satisfaction. In addition to this both Whitcomb and his wife deny in their depositions that any agreement of settlement or accord and satisfaction was reached. It seems clear to us that there was a genuine dispute in regard to the alleged accord and satisfaction and, indeed, even if it were ultimately found to have existed Whitcomb would at least be entitled to judgment for the amount of the check which admittedly he has never received. ²

(b)

There also is a genuine dispute about the value of accumulated vacations. Horman admitted in his deposition that the usual and expected vacation with pay of Whitcomb was for two weeks each year and that Whitcomb had not taken or received that much vacation in each year. Whitcomb contends that he is to be paid for the accumulated vacations. This issue will have to be resolved at the trial and the amount due, if any, determined.

(c)

Whitcomb, who was a field engineer selling electronic equipment as a representative for manufacturers, testified in his deposition that at a meeting on July 5, 1960, Horman (as president and on behalf of the corporation) had promised him that if Whitcomb would stay on in his employment for the months of July and August, 1960, after Whitcomb had advised Horman in June, 1960, that he was leaving the corporation's employment in order that the remaining field engineers could have their vacations and attend training seminars conducted on the west coast by a leading manufacturer, Whitcomb would receive his regular salary and in addition to this, an amount which he would normally receive as salary for a six-month period. Mrs. Whitcomb, who was present at the July 5 meeting, corroborated this. The annual salary consisted of a 'draw' of $10,000 and a bonus calculated on the basis of profits from sales which averaged $10,000 a year and was paid twice a year, so that Whitcomb received total compensation of approximately $20,000 a year. Horman does not deny the substance of the Whitcomb testimony but testified that he only promised Whitcomb $10,000 in addition to his regular 'draw,' which he considered to be a 'severance payment,' but there is nothing in the record to show that Horman's thought in this regard was ever communicated to Whitcomb. Whitcomb testified that the check sent to him by the corporation 'did not include the bonus portion of the pay for those last two months' so that there is a genuine dispute concerning the amount due, if any, to Whitcomb for this item.

(d)

Whitcomb claims a possible interest in a profit sharing trust agreement. Whitcomb received a letter from the corporation dated May 13, 1960 concerning this agreement and a copy of one letter was attached to his affidavit in opposition...