Dakin v. Pomeroy

9 Gill 1 | Md. | 1850

Magrtjder, J.,

delivered the opinion of this court.

This suit was instituted in Baltimore county court, by the appellees, and there is no controversy in regard to their right of action or the amount due thereon.

The defendant below claimed a right to set off a demand, founded on a conveyance of land by the plaintiffs to one Demerritt. This conveyance contains a covenant for quiet enjoyment of the premises. It is alleged, that the same was broken, and subsequently assigned to the defendant by Demerritt. If this claim cannot, according to the laws of Maryland, be set off, then the defendant cannot complain of any error in regard thereto, which may be found in the instruction of the court.

But for our act of Assembly, 1829, ch. 51, it certainly could not be said, that such an assignment as the one now relied on, could be used in Maryland, by way of offset against the demand of the plaintiff. According, however, to the opinions of this court, expressed in Gordon vs. Downey, 1 Gill, 41, and Cranfurd against Brooke, 4 Gill, the act of 1829 does not embrace such an assignment as this. The assignee must be entitled “to a judgment, bond or specialty, or other chose in action, for the payment of money. ” It cannot be a stipulation to do or omit to do some act or duty.

The covenant, which is made the foundation of this demand, cannot well be separated from the deed of which it is a part, and by an assignment of it to a person who had no interest in the land, he cannot be entitled to institute a suit upon it in his own name. If he cannot institute such a suit, it cannot be an offset against the claim of the plaintiff in this suit. We think the defendant below had no right of set off.

This opinion renders unnecessary a decision of the question which was supposed to arise upon the exception. The court seem to have taken a decision of the facts from the jury. But by the instruction which was given, the defendant below was very far from being injured.

The covenant here relied on by the defendant below, the breach and subsequent assignment, is a New York transaction, and it is insisted, that most of the questions are to be determined by the law of New York.

It is true that we claim a right to use, (and perhaps use too freely,) the decisions of our sister Slates, by way of illustration or argument, but it ought to be remembered, that when the question to be decided by us is, what is the law of another State? we must be furnished with legal proof, and in the absence of such proof, the question must necessarily be decided by the law of Maryland.

In regard to this suit, it may be observed, that although the lex loci determines the nature, construction and validity of foreign contracts, the lex fori is to be resorted to, in order to ascertain the remedy which is to be used. The inquiry is not, whether in a case like this, and depending in a Maryland court, such a claim as that of the defendant below can, according to the laws of New Nork, be set oil' against the plaintiff’s demand. It is not necessary then to enquire, why the words “ conceding that the plaintiff was entitled to a set off, as assignee of said Demerritt, to the same extent that the said Demerritt would be if ho was the defendant,” were introduced into the plaintiff’s prayer, as the question of tho right of the defendant must be determined by the law of Maryland, and cannot depend upon any concession or admissions by the parties of what our law is.

JUDGMENT AFFIRMED.