57 A.2d 333 | Md. | 1948
Martin T. Burkhouse filed a declaration in the Baltimore City Court against the appellees, alleging that he purchased a power boat from Duke, through his agent, Evans, and paid Evans $50.00 on account of the purchase price of $3,250.00; that Evans, as the agent of Duke, agreed to make certain specified repairs and deliver the boat upon the payment of the balance due; but that Duke has declined and refused to deliver the boat as agreed, although the plaintiff is ready, willing and able to comply with the agreement; and that the plaintiff has been damaged by the breach. *46
Separate demurrers were filed on behalf of Duke and Evans. Duke's demurrer, in addition to general grounds, attempted to set up that the plaintiff had filed suit for specific performance of the alleged agreement of sale, which suit was dismissed without prejudice, and that the equity court "in passing on the alleged agency found for the defendant, Charles C. Duke". Evans' demurrer, in addition to general grounds, set up that the declaration showed on its face that Evans was acting solely in his capacity of agent and failed "to show any direct undertaking on his part with the plaintiff establishing a legal liability for any defaults of his principal."
At the hearing upon these demurrers the court sustained Duke's demurrer, without leave to amend, and entered judgment for this defendant. The court sustained Evans' demurrer, with leave to amend, and entered judgment on motion, after the plaintiff failed or declined to amend. The plaintiff appealed from both judgments. No brief has been filed in this court on behalf of the appellee, Duke.
The declaration, as against Evans, did not state a good cause of action. If Evans had been acting for an undisclosed principal, he could have been sued on the contract. Codd Co. v. Parker,
It does not appear from the record upon what ground the court sustained the demurrer as to Duke. The declaration alleged that Evans acted as his agent throughout. If, in fact, Evans acted without, or exceeded, his authority, that would be a matter of defense. It is also clear that the defense of res adjudicata
should be raised by special plea or evidence under the general issue plea. Wilmer v. Placide,
Judgments affirmed and case remanded, with costs. *48