White Auto. Co. v. Dorsey

• Decision Date: 14 January 1913
• Parties: WHITE AUTOMOBILE CO. v. DORSEY.
• Court: Maryland Court of Appeals

86 A. 617

119 Md. 251

WHITE AUTOMOBILE CO. v. DORSEY.

Court of Appeals of Maryland

January 14, 1913

Appeal from Baltimore Court of Common Pleas; Henry Duffy, Judge.

Action by William C. Dorsey against the White Automobile Company and another. From a judgment for plaintiff, defendant named appeals. Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS PATTISON, and STOCKBRIDGE, JJ.

Z Howard Isaac, of Baltimore, for appellant.

John S Ensor, of Towson, and Charles L. Merriken, of Baltimore, for appellee.

BURKE J.

On the 16th day of June, 1911, William C. Dorsey brought suit in the Baltimore city court against the White Company and the White Automobile Company. The last-named defendant is a corporation. Both defendants filed the general issue pleas, and the White Company filed a further plea denying its incorporation. Issue was joined upon the pleas of the White Automobile Company.

Upon the suggestion and affidavit of the defendants, the case was removed to the court of common pleas for trial. The trial in that court began on the 28th of February, 1912, and on the 9th day of March the jury rendered a verdict in favor of the plaintiff for $2,000, and from the judgment entered on that verdict the defendant has brought this appeal.

The record is voluminous, and presents for consideration 75 bills of exception taken by the defendants during the course of the trial.

A clear statement of the issues raised by the pleadings and of the general purport and effect of the evidence will dispense with a discussion of each exception, as many of these exceptions present precisely the same question, and may therefore be disposed of by such legal principles as we shall determine to be applicable to the case.

The declaration, as originally filed, contained three common counts, viz.: (1) For money paid by the plaintiff for the defendants at their request; (2) and for money had and received by the defendants for the use of the plaintiff; (3) and for money found to be due from the defendants to the plaintiff on accounts stated between them. There was also a special count. This count was, by leave of the court, withdrawn by the plaintiff, and therefore need not be considered. During the trial, upon leave granted, another special count was filed, which is called in the record the sixth count, although it is really the fifth count, and will be so referred to in this opinion. This count alleged that the defendants, "on or about the 26th day of May, 1910, offered to sell to the plaintiff a motor car or automobile, known as the 'White Steamer,' model 00 1910, at and for the sum of two thousand dollars, and as an inducement to said plaintiff to make said purchase said defendants, by their servants and agents, then and there represented and warranted to the said plaintiff that said automobile was sound, free from defects in workmanship and materials, and would be satisfactory to the plaintiff, and that said defendants would keep the same in satisfactory running condition, without expense to the plaintiff, for a period of one year from the date of said purchase."

It further alleged that the plaintiff, relying upon said representations and believing them to be true, agreed to purchase, and did purchase, said automobile and paid therefor the sum of $2,000, and received the machine and undertook to use it. The count then alleged the breach of the contract on the part of the defendants in these words: "Said plaintiff found that said automobile was not in sound condition, free from defects in workmanship and material, but, on the contrary, was unsound and defective as to workmanship and material, and would not and could not be run or operated as an automobile in sound condition could and would be run, and constantly required repairs, and was constantly out of order and out of repair, which facts were made known to the defendants, but that said defendants failed and refused to put said car in good order and repair," etc.

After the fifth special count had been filed, the defendants demurred to the whole declaration and to each count thereof, and the court overruled the demurrer. They then filed a demand for a bill of particulars, which the court denied. The pleas filed with the original declaration were refiled to the fifth count, and issue was joined thereon.

During the progress of the trial judgment was entered in favor of the White Company, and the trial proceeded against the White Automobile Company. The appellant renewed its demand for a bill of particulars, which the court again denied.

The testimony appearing in the record was then offered by the respective parties upon the issues of fact raised by the pleadings. We will first consider the questions of law raised by the demurrer and the demands for a bill of particulars, and these are: First. Was the fifth count a good count? Second. Was the appellant entitled as a matter of right, under the circumstances stated, to a bill of particulars?

As to the first question. As the declaration contained the three common counts, each of which was good, and one special count, there was no error committed in overruling the demurrer to the whole declaration. It is well settled that where a declaration contains several counts, some of which are good and some bad, a demurrer to the whole declaration will be overruled. In Willing v. Bozman, 52 Md. 44, the familiar and long-settled rule was announced that a defendant will not be entitled to judgment on demurrer to the whole declaration, unless all the counts thereof were bad. The demurrer to each of the common counts was properly overruled, as each of those counts was good.

But it should have been sustained as to the fifth count, as it clearly offended against the rule which forbids duplicity in pleading. The count combines two distinct causes of action: First, a breach of the express warranty that the automobile "was sound, free from defects in workmanship and material," etc.; and, secondly, a breach of a contract on the part of the defendants "to keep the same in satisfactory running condition, without expense to the plaintiff, for a period of one year from the date of said purchase." It was proper for the plaintiff to have embodied in his declaration in separate counts both causes of action; but their combination in one count was a typical example of duplicity in pleading, and rendered this count bad, and therefore the demurrer to it should have been sustained. Chitty on Pleadings, 225; Poe on Pleadings, vol. 1, § 733; Stearns v. State, 81 Md. 341, 32 A. 282; State v. McNay, 100 Md. 622, 60 A. 273.

As to the second question. The general rule is that, in cases where the defendant is entitled to demand the particulars of the plaintiff's claim, he should make the demand before pleading. "By pleading to the declaration," says Mr. Poe in his work on Practice (section 120), "it is ordinarily held that he loses or waives his right to exact the particulars; for by the very act of pleading he virtually admits that he has sufficient knowledge of the details of the plaintiff's cause of action."

The record shows that the appellant filed the general issue pleas on the 15th of July, 1911, and the demand for a bill of particulars was not made until the 29th of February, 1912, after the trial had begun. So far at least as the common counts are concerned, there is nothing in the record to prevent the application of the general rule stated by Mr. Poe, and upon the authority of Black v. Woodrow, 39 Md. 194, the appellant was not entitled to a bill of particulars under the fifth count. The sixth count in that case alleged "that the appellees and appellant agreed together that the former would build for the latter a frame house on his farm, in the manner and according to the specifications stated and set forth, and that the appellees, in pursuance of the contract, commenced and progressed in the work of erecting such house, and expended large amounts of money in providing materials therefor; and although the appellees were then and there ready and willing and anxious to comply with the contract in every particular, and to build the house in every respect in exact accordance with the contract, they were prevented from so doing by the express orders of the appellant, whereby they sustained damage to the amount of six thousand dollars." Speaking of a demand of the defendant for the particulars of the plaintiffs' claim under that count, Judge Alvey said: "But as to the sixth count the particulars were unnecessary, and were not demandable, as the count itself was special, setting out fully the contract, and alleging as a breach the appellant's prevention of performance of the contract by the appellees, and consequent damage sustained by them. The count therefore furnished sufficient notice of the nature and character of the claim, and of the evidence required to support it. This is all that a defendant has a right to demand in regard to the certainty of the plaintiffs' claim."

We now pass to the consideration of 73 bills of exception taken by the appellant to rulings made by the trial court upon questions of evidence. As many of these exceptions relate to the law of warranty, the measure of damages in cases of breach of warranty, the competency of certain witnesses to express opinions as to alleged mechanical and structural defects in the automobile known as the White Steamer model 00 1910, and to the admission of testimony alleged to be irrelevant, some general principles, bearing upon the precise questions presented on this branch of the case, will be stated:

First. It was stated in Osgood v. Lewis, 2 Har. & G. 496 18 Am. Dec. 317, a case which has been consistently followed in this court, that "to create an express warranty...