65 Md. 1 | Md. | 1880
delivered the opinion' of the Court.
The declaration in this case after setting out that certain land of the plaintiff was about to be sold at trustee's sale, alleges “that the defendant proposed to the plaintiff that the plaintiff should become the purchaser of the said land at the sale, and promised the plaintiff, that if he would confess judgment in favor of the defendant for the amount of a certain unfounded claim the defendant then had against the plaintiff upon a certain joint and several promissory note, dated the 16th of August, 1869, for the sum of $810, payable one day after date, to the. order of the defendant, which note had been theretofore made hy a certain Joseph Broumel and the plaintiff who joined therein for the accommodation only of said Broumel, and as his surety and against said note and any action of the defendant thereon, the plaintiff then and there had a just and perfect defence, that he, the said defendant, in consideration thereof would advance and supply to the plaintiff all the money required to meet the payments of purchase money under such trustee’s sale, upon the understanding that the moneys which should be so advanced should be returned to the defendant hy the plaintiff after the plaintiff had effected a sale of the land so to be bought, which subsequent sale the defendant represented to the plaintiff that he could easily make at a large advance upon the price at such trustee’s sale; and the plaintiff, induced by the persuasions of the defendant, and relying upon his promise
At the trial, Joseph Broumel, who was a joint maker with the plaintiff of the promissory, note for $810 to Alexander PI. Horner, (alleged in the declaration as an unfounded claim, the confession of judgment upon which to Horner is alleged as the consideration for Horner’s promise on which suit was brought,) was admitted as a witness to prove the unfounded character of that note. The first exception raises the question whether this witness was competent, it appearing at the trial, that Alexander H. Horner, the payee of'the note, was then dead, and his executors were the parties defendant to the suit.
Under the construction which has been given, the Evidence Acts of 1864 and 1868, by numerous‘‘decisions of this Court, we think no error was committed in admitting Broumel’s testimony. The object of those' Acts was to remove restrictions and not to impose them. Only such exceptions were made as seemed necessary to preserve mutuality, and to prevent undue advantage being given to a survivor in a contract where the other contractor was dead. Downes, Ex’r vs. Md. & Del. R. R., 37 Md., 104; Johnson vs. Heald, 33 Md., 352; Swartz vs. Chickering, 58 Md., 295. It is only where the suit is upon the cause of action, to which one party is dead, that the other party is excluded to preserve mutuality. Where such contract
The second bill of exceptions embraces the prayers which were granted and refused. The fourth prayer of the defendant, which was rejected, was treated not only as a prayer to take the case from the jury, but as interposing special exceptions to the plaintiff’s first prayer which was granted. It states three propositions, 1st, that there is no evidence' in the cause legally sufficient to support the same; 2nd, that no consideration has been proven for the promise sued on, and 3rd, because none of said promises and agreements can be maintained under the Statute of Frauds.
If the provisions of the Statute of Frauds do not prevent recovery, there was, undoubtedly, sufficient consideration for the defendant’s undertaking, and proof from which the jury could find for the plaintiff. The $1263.11,
It was not a contract for an interest in land, and was not obnoxious to the land clause of the fourth section of the Statute. The decision of Lamm vs. Port Deposit Association, 49 Md., 240, would seem to be conclusive on that point. This we understood as conceded at the hearing; and the only ground relied on under the Statute is, that it was required to be in writing because it was a contract not wholly to be performed within a year from the making thereof. To bring a case within the year clause of the fourth section of the Statute, it must appear that it was expressly and specifically agreed that the contract was not to be performed within a year. This was'the construction given to the statute in Fenton vs. Emblers, 3 Burrows, and that construction has been unqualifiedly adopted in this State. In Ellicott vs. Peterson’s Ex’rs, 4 Md., 488, Judge Legrand says “the Statute will not apply
George Frazier testified, “that Horner told his father, (the appellee,) that he would lend him the money to make the payments if he would confess judgment for the Broumel note.” This was on the day of sale. He remembered nothing of there being deferred payments. Miss Noretta Frazier after giving testimony tending to show the Broumel note was not really owing by her father, (the appellee,) further testified, “that Horner told her father to buy the farm in under the foreclosing mortgage and that he would furnish the money for the first payment, and go security for the credit payments, and pay as they became due if her father did not have the money to pay them, that is if he would settle this Broumel claim in Court at that time, that is, if he would give judgment including that claim.”
There was another witness who testified to a contract differing in some respects materially from that stated by
As to the second prayer of the plaintiff, assuming there was evidence to go to the jury to sustain the action, we did not understand any serious objection to be made to it, and we certainly can see none. As to third prayer of the appellee, we see no solid ground for objection to it. There was some evidence that the appellants’ testator owed the appellee for pork, and if so, it was certainly competent for the jury to find for whatever was due on that account under the second count of the narr. which declared for goods bargained and sold, and it seems immaterial to consider whether it could be recovered for under the third count or not. If the jury found on these counts at all, it was added to the general verdict. We cannot tell, and see no ground of complaint on account, of that instruction.
The only remaining question is, whether the jury was sufficiently instructed as to damages in the plaintiff’s first prayer ? No specific rule for the assessment of damages is there declared, but it was left to the jury to find such damages as they might find from the evidence had been actually sustained. It does not appear in the record, that objection was taken below to the prayer for infirmity in this respect. No prayer on the question of damages was. offered by the defendants. It was certainly their privilegé and duty to have asked for instruction as to the true measure of damages applicable to the case, and if any controlling rule exists for computing damages in such case, the Court, on application, would have laid it down as a guide to the jury. If the plaintiff’s first prayer had simply concluded, after the words, “and that the plaintiff thereby suffered loss,” with the words, “then they should find
Judgment affirmed.