Dorsey v. Wayman

6 Gill 59 | Md. | 1847

Archer, C. J.,

delivered the opinion of this court.

The agreement for the sale of land, called “ Range Declined,” contains no sufficient description of the land sold. It is described, as being all that part of “ Range Declined,” lying adjoining the turnpike. Thus, the contract gives only the line adjoining the turnpike; what are the other courses and distances of the land sold, cannot be known from the agreement itself, or by any thing referred to in it. Such an agreement, we apprehend, we could not enforce further, than as admitted by the defendant. To this extent, the Chancellor has decreed against the defendant, and he concedes, that to this extent, the decree is not objectionable. Independent of the above consideration, the evidence as to the bounds and quantity of land sold, is uncertain and indefinite.

As the second ground of appeal, it is conceded by the answer, that the sum credited to the single bill, was paid on the note; but, that Hobbs had agreed that it should be credited on the single bill.

Exhibit No. 2, filed with the answers, shows, that the sum in dispute was paid on the note, and there is no evidence of the existence of any such agreement to change the application of the payment. When the amount was paid by Wayman, it is not pretended he was ignorant of the facts upon which his liability depended, and if the claim was legally invalid, having voluntarily paid the amount in controversy on the note, he cannot transfer the amount from the note to the single bill.

We cannot perceive there is any other credit than the above, and what has been allowed on the single bill, established as against the claim of the complainant on the single bill. The order of Steene, in favor of Wayman, was long anterior to the settlement recognized by the agreement of 1827, and must in the present state of the pleadings and evidence be considered as closed.

The claim No. 3, we do not think is established. The agreement between Richard Dorsey and Wayman, is unintelligible. The answer avers, that Wayman was only a security for Richard Dorsey, that he would pay one-half the loss which might be sustained.

William Hobbs and Richard Dorsey, having agreed each to sustain one-half the loss—the only testimony we have, in relation to the agreement under which the note of Writ. Hobbs was originally discounted—is proved by the declarations of Wayman, made evidence by the complainant’s 12th Interrogatory, filed with the first commssion. This evidence sustains the answer, and proves that Wayman was only the security of Richard Dorsey in the endorsement; that Dorsey's estate was amply sufficient to have paid his liability, yet, that no claim was presented until after Dorsey's estate was settled up, when he could have no recourse for indemnity against Dorsey's estate.

Believing this to be the only evidence operating on the case, and assuming it to have been the real transaction between the parties, we do not think that Wayman was answerable to Hobbs' estate for the deficiency, if it be true, as averred in the bill, that Richard Dorsey was discharged from his liability.

Wayman's consent to Dorsey's discharge is not, we think, indicated by his continued endorsements and payments of discounts. The bank was no party to the agreement by which he became security for Richard Dorsey, and, as regards the bank, he was bound as an endorsee from time to time, to provide for his note. In this way, the renewal of the notes may be accounted for, without attributing such renewal to any consent on his part to Richard Dorsey's discharge.

A decree will be passed, reversing the decree of the Chancellor, and with costs to appellant; directing payment for the balance due on the land admitted by the answer to have been purchased; disallowing the credit of one hundred dollars, which has, by the Auditor, been allowed to the single bill, and disallowing the claim designated as No. 3.

DECREE REVERSED WITH COSTS AND DECREE FOR APPELLANT.