44 A.2d 435 | Md. | 1945
The plaintiff, B.F. Litsinger, appellant here, filed in the Superior Court of Baltimore City under the Speedy Judgment Act (Charter and Public Local Laws of Baltimore City, 1938, Sections 404-410, Code, 1930, Public Local Laws of Maryland, Article 4, Sections 313-315B, and Act of Assembly, 1931, Chapter 102) a declaration against the defendant, appellee here, containing two counts: (1) The common count for goods bargained and sold, (2) the common count for work done and materials provided. Accompanied by the usual affidavit that the amount due was $550 was a cause of action showing (1) a balance of $250 due for one neon sign sold and delivered, and (2) $300 due for a lighting unit which defendant verbally ordered, which plaintiff finished and was in the act of installing as ordered when stopped by defendant, the total price being $600 and $300 having been paid thereon. Defendant filed a demand for additional particulars. In view of the waiver by counsel for *156 defendant of any contention that furnishing particulars would take the case out of the Speedy Judgment Act, the demand for a bill of particulars was granted by the Court.
The additional particulars filed by the plaintiff did not materially change the particulars as contained in the first item of the account. The additional particulars filed as to the second item of the cause of action added no material allegations to that item. A demurrer was filed to the declaration and to each and every count thereof alleging as special grounds therefor a misjoinder of action and further that the alleged indebtedness of $300 is not a claim for an ascertained amount of liquidated indebtedness as required by the provisions of the Speedy Judgment Act. The demurrer as filed was sustained by the Court with leave to amend and upon statement of counsel for plaintiff that he did not wish to amend, judgment was entered in favor of defendant for costs of suit. From that judgment the plaintiff appeals here.
On appeal the appellee abandons the first ground set forth in the demurrer, namely the misjoinder of causes of action, and relies on the claim that the item of $300 is not a claim for an ascertained amount of liquidated indebtedness as required by the provisions of the Speedy Judgment Act.
Appellee admits and this Court finds that the first item is good under the Speedy Judgment Act aforesaid and that both counts are good at common law.
As to appellee's contention that the second item in the cause of action was not a claim for an ascertained amount of liquidated indebtedness, it is said by Poe on Practice, Vol. II, paragraph 415 (Tiffany Edition): "As the result of the authorities, it may be stated that the claim, in order to be within the act, must be one for an ascertained amount of liquidated indebtedness, to which a plaintiff can safely and properly swear; and the cause of action which must be filed with the declaration must be one which either on its face shows the liability of the *157
defendant and the amount of such liability, or which itself furnishes the standard or means of arriving at such liability." This statement has been affirmed many times by this Court. Among other cases, see Mueller v. Michaels,
In the item now before this Court, as hereinbefore recited, the declaration alleges that the defendant verbally ordered from the plaintiff one lighting unit for the price of $600 which the plaintiff finished as ordered and was in the act of installing as ordered when the defendant stopped him; further that $300 had been paid on account leaving a balance due of $300. Therefore, according to the allegations of the declaration, the contract was not performed by the plaintiff due to the fact that he was stopped in his performance by the defendant. Where the amount due can be determined only by the verdict of a jury or in another similar manner, the amount claimed cannot be considered as a liquidated indebtedness. Unliquidated damages are such as rest in opinion only, and which cannot be ascertained by computation or calculation. Steuart Steuart v. Chappell,
The bill of particulars filed as to this item, which we find insufficient under the Act, could not in any way make the claim one for a liquidated amount under the Act. A bill of particulars could not be held in any case under the Speedy Judgment Act to cure an insufficient statement of defendant's indebtedness since it was not filed with the declaration when the action was begun as directed by the statute. Mueller v. Michaels, supra,
Although this second item of the cause of action was not such as to comply with the provisions of the Speedy Judgment Act, yet as hereinbefore stated, both counts are good at common law. Therefore, the plaintiff is not entitled to the summary proceedings and other benefits such as counsel fee under the Speedy Judgment Act. Petite v. Homes, supra,
Judgment reversed with costs and case remanded for furtherproceedings.
