57 Md. 454 | Md. | 1882
delivered the opinion of the Court.
The questions involved in this case are mostly of a. technical character, and for their decision recourse must be had to the established rules of good pleading.
The declaration contains but a single count, and that is founded upon what is denominated therein to.be a certain indenture made between the plaintiff, of the one part, and the defendant, and a certain J. S. Johnson, of the other part, whereby the plaintiff leased to the said Johnson and the defendant a certain room, in the City of Cumberland, for the term of three years, at the annual rent of' $600, payable quarterly in each year of the term. It then alleges that the defendant, “ on her part, for herself.
It will be observed, that the covenant for the payment of the rent is alleged to be, and is sought to be enforced as, the several covenant of the defendant, notwithstanding the lease was made to the defendant and one Johnson. Hence the case does not fall within the principle of the cases of Merrick vs. Bank of the Metropolis, 8 Gill, 59; State vs. Wheeler, 14 Md., 108, and Kent vs. Holliday, 17 Md., 387, wherein it was held, that, in an action against one alone, if the declaration discloses that the contract sued on was the joint contract of the defendant and another, it is necessary to aver that the other party is dead, non-resident, or to account for his not being joined in the action; otherwise the declaration would be bad on demurrer or writ of error. Here the declaration makes no such disclosure, and therefore the principle of those'cases has no application to this case.
The declaration being free of objection in this respect, the defendant pleaded two pleas in abatement. By the first, it is alleged that the defendant, at the time of suing out the writ, was, and still is, married to one J. R. Cruzen, who is still living at the county aforesaid, wherefore, because her said husband is not joined, she prays judgment, &c.
And by the second plea, it is alleged that the supposed indenture in the declaration mentioned, if any such, was made by the defendant jointly with one J. S. Johnson, who is still living at th.e county aforesaid, and not by the
To these pleas the plaintiff demurred, and the Court ruled the first plea bad, and the second good. The plaintiff then filed three several replications" to the defendant’s second plea in abatement. And to the first and second of these replications the defendant joined issue, and to the third she demurred ; and which demurrer was overruled by the Court.
We think both of the pleas in abatement should have been ruled bad on demurrer.
The Court was clearly right in so ruling in respect to the first of those pleas, under the Act of 1867, ch. 223, and the case of Worthington vs. Cook, 52 Md., 297. In the case just referred to, it was expressly held, that an action at law, on a covenant for the payment of rent, for real estate or chattels real, leased to a married woman, since the Act of 1867, could be maintained against her; and that it was error to join the husband as a co-defendant, unless he had joined in the covenant with the wife. In this case, the fact that the lease was made to the feme covert, together with another person, could in no way affect her power to bind herself by covenant running with or relating to the estate demised, “ the same as if she was a feme sole.” It is not in her character of feme covert that she contracts under the statute, but as she could do if she were feme sole.
With respect to the second plea in abatement, that is defective for want of certainty in its averments, and should also have been ruled bad. In all dilatory pleas, as they tend to delay the trial of the case on its merits, great accuracy and precision are required; and while pleas in har may be good if they be certain to a common intent,. every dilatory plea must be certain to every intent. Bac. Abr., tit. Abatement, (O ;) Hixon vs. Binns, 3 T. R., 185; 1 Chitty Pl., (16th Ed.,) 473. In this second plea, there
But these pleas in abatement, notwithstanding it appears that issue had been joined on the first and second replications to the second plea, were effectually waived and abandoned by what was subsequently done in the progress of the cause. After the Court had overruled the demurrer to the third replication, the defendant, under leave to amend, filed two several pleas in bar of the action. By these pleas all matter of abatement previously pleaded was effectually waived ; for no principle in the system of special pleading is better settled than that you cannot plead together both matters in abatement and in bar ; and that by pleading in bar, all previous pleas in abatement are waived and abandoned, and cannot be again resumed. Chapman vs. Davis, 4 Gill, 166, 176; Sheppard vs. Graves, 14 How,, 505; Balto. & Ohio R. Co. vs. Harris, 12 Wall., 65, 84; Steph. Pl., 430, 431. But this principle of waiver does not, of course, apply where the matter in abatement has arisen since the commencement of the suit and plea in bar pleaded. In such case, the matter in abatement may he pleaded puis darrein continuance, because the pleading in bar only waives such
Such, then, being the effect of the pleas in bar upon the previous pleading in abatement, we are brought to consider the sufficiency of the two pleas in' bar, upon demurrer thereto.
The first .plea is, that there was a former recovery against J. S. Johnson, co-lessee with the defendant, for the rent sued for in this action. It is alleged that “ the cause of action sued on in said cause, and the rents so therein claimed and recovered, are the same that are now claimed in' this cause, and none other; and that this defendant, at the time of bringing said suit, and at the time of recovering said judgment, was residing in said county, and said judgment is still remaining of record in full force and effectand she avers, that, by reason of the matters and things aforesaid, she hath been and is fully discharged and released from all liability for the rent sued for in this action.
In the second plea it is averred, that the defendant was., at the time of accepting the lease, and making the covenant, and still is, a married woman; and that, at the time of accepting the lease, she and J. S. Johnson were engaged as partners in trade, and-that the said supposed indenture and covenant was made by her and said Johnson jointly, as such partners, and for the use and benefit of said partnership; that she then was, and still is, incapable in law to enter into a contract of partnership, or to make a contract for the use or benefit of such partnership ; of all of which the plaintiff had notice; and that, by reason of the premises, the said supposed indenture is utterly null and void, as to the said defendant.
To both of these pleas the plaintiff demurred, and the demurrer was sustained by the Court.
It is insisted, however, that the bringing of this action is in violation of the second section of Article 49 of the Code, as amended by the Act of 1870, ch. 329. This section of the Code, as it now stands, is but the re-enactment of the Act of 1825, ch. 167, sec. 1, with an amendment extending its provisions to actions on promissory notes; and by its terms, it only applies to actions on joint and, several bonds, promissory notes, penal, or single bills, when the persons executing the same are alive and reside in the same county. Eor a construction of this section of the statute, see the case of Blizzard vs. Jacobs, 3 G. & J., 66. Here the cause of action is a covenant, and therefore that section of the Code has no application.
With respect to the second plea in bar, we think the Court below was equally right in ruling it bad on demurrer.
It is not pretended that the instrument sued on was the contract of co-partnership ; nor is it averred that the instrument upon its face shows that the property leased was to be used for partnership purposes, and none other. It may have been used for that purpose, or it may have
Such being the case, there is no analogy between this and the case where a lease is made, and is intended by both the contracting parties, expressly to contravene and to carry into effect that which is prohibited by the law of the land. In such case the Courts will not lend their aid to enforce the contract; and such was the character of the case of the Gas Light & Coke Co. vs. Turner, 5 Bing. N. C., 666; S. C., in Exch. Chamber, 6 Bing. N. C., 324; and to many others of the same character reference might he made.
After the ruling upon the demurrers, and upon inquiry before the jury as to the extent of the damages sustained by the plaintiff, the latter offered in evidence the lease containing the covenant sued on, which brought before the Court for the first time, the entire instrument, and the covenant of the defendant upon which the suit is sought to he maintained. That covenant is as follows :
“ And the said J. Smith Johnson and E. M. Oruzen, on their part, each for himself, herself, covenant that they will pay said rent of six hundred dollars per year, quarterly, as above stated.”
The defendant objected to the introduction of the lease and covenant, upon the ground of variance between the allegation in the declaration and the proof. The Court overruled the objection, and we think properly so ruled.
If the covenant is not entirely several, it clearly is not simply joint, hut is joint and several — the parties each for himself and herself, covenanting that they wrould pay the rent. May vs. Woodward, Freem., 248; Robinson vs. Walker, 1 Salk., 393 ; 1 Wms. Saund., 154a, note (b.) “And where two persons covenant jointly and severally, with another, the covenantee may bring an action against one of the covenantors only, though their interest in the
But even if we assume that the covenant is only joint, and not joint and several, still, there would be no ground for rejecting the contract of-lease, containing the covenant sued on; as the objection raised could only be taken advantage of by plea in abatement. The principle has long since .been settled, that, in case where two or more are jointly bound by. contract, and one only be sued, it is no matter in bar of the action, or ground of demurrer, or in arrest of judgment, that the others are not joined, except where the declaration discloses upon its face .that the contract was joint, and the plaintiff fails to show why all the parties jointly liable have not' been joined as defendants; nor does it form ground of variance in the evidence upon the trial. Brown vs. Warram, 3 H. & J., 572; Merrick vs. Bank of Metropolis, 8 Gill, 74; Gilman vs. Rives, 10 Pet., 300. Though the contract be joint, it is still the contract of the party sued, and recovery may be had against him ; and though he be declared against as the only party bound, or as being severally bound, by the, contract, if he does not take advantage of the nonjoinder by proper plea in abatement, he cannot object to the reception in evidence of the joint contract, upon the ground of variance between the allegata and probata. This principle was settled in Whelpdale’s Case, 5 Co., 241, and it, has been strictly adhered to in all subsequent cases occurring in the English Courts. 1 Wms. Saund., 291c, note (4,) and note (f;) Richards vs. Heather, 1 B. & Al.,
The question raised on the second hill of exception taken by the defendant is the same as that raised by her second plea in bar; and as we have already considered that question upon the demurrer to the plea, we shall say nothing more in regard to it, in disposing of this exception.
Upon review of the whole record we find nothing to require reversal, and we must therefore affirm the judgment.
Judgment affirmed.