Nelson v. Close

127 A. 751 | Md. | 1925

The appellant sued the appellee for reimbursement of assets of the estate in her hands which had been appropriated in part payment of a note on which her decedent had been maker for the accommodation of the appellee. The declaration originally contained the usual six common counts, and a seventh count which set out at length that the appellant as executrix had opened a checking account in the Harford Bank of Bel Air, and that a balance of $3,079.50 had been appropriated by the bank in part payment of a note of $4,000 of her decedent, made for the accommodation of Close and indorsed and discounted by him at the bank. Later, the plaintiff amended her declaration by filing an eighth count, which repeated the facts in the seventh count with some elaboration, adding an allegation, among others, that the appropriation of this balance on deposit had been made by the bank, "with the knowledge and consent of, and the authority from the said Philip H. Close."

The defendants demanded a bill of particulars of the claim under the amended declaration, and particulars substantially the same as those set out in the seventh and eighth counts were filed. Defendant then demurred to the amended declaration, the demurrer was sustained, and the plaintiff, having declined to make further amendment, final judgment was entered against the plaintiff on the demurrer. She appeals from that judgment.

In the argument in this court it was contended that the particulars had been given only of the eighth count, and that the demurrer to the whole declaration, covering the common counts as well, could not properly be sustained because the common counts remained unobjectionable and sufficient without the eighth count. On the record this is not entirely clear. The defendant demanded particulars of the claim "under the amended declaration," and the plaintiff declared on the face of the paper containing the particulars that they were "the particulars of the amendment to her declaration in answer to the defendant's demand for the particulars of the same." And the defendant then demurred to "the amended declaration." So it would seem that the defendant was demanding particulars of the whole declaration, including the common counts, and demurring to the same thing, and the plaintiff in complying with the demand described the particulars as those of the "amendment" only. Of course, when a bill of particulars of the whole declaration, including the common counts, is filed, a demurrer to the whole declaration would be tested by the sufficiency of the cause of action thus particularized. NoelConstruction Company v. Armored Construction Company, 120 Md. 237, 250; Thompson v.Young, 90 Md. 72, 74; Scott v. Leary, 34 Md. 389. It seems clear that the plaintiff was undertaking to comply with the defendant's demand for particulars of the whole amended declaration, and according to our understanding of the statements of both counsel, the case was argued and disposed of below on the assumption that the whole cause of action was that stated in the bill of particulars. In view of these facts, we think that the discrepancy in the heading of the plaintiff's paper limiting the particulars to the one count, should be ignored as a verbal error, and the case considered here as it was considered below.

In support of the demurrer it is objected that the allegation that the appropriation of the fund had been made with the knowledge, consent and authority of the defendant is too general and insufficient for that reason. We are not able to agree in this. In so far as the fact may be relevant in the case we think this statement of it is all that may be required for good pleading. It seems to mean only that the defendant acquiesced in a payment which might involve a claim against him for reimbursement.

But the main objection raised on demurrer is that under article 8, sec. 5, of the Code only those indorsers or other secondary obligors who have paid all of a principal obligation are entitled to an assignment of it and to maintain an action by virtue of it against the principal debtor. But this statutory provision does not affect the present claim, for the plaintiff sues here on the implied obligation of one for whose use she has paid out money, and not on the note held by the bank. The statute has to do only with the taking over of the creditor's security and rights against the principal debtor by the process of subrogation; and the rule that the debt must have been paid in full before the secondary obligor is entitled to that, is a rule resulting from the superior rights of the creditor, a rule for preserving those rights free and untrammeled by the intrusion of the secondary obligor on the security as long as the creditor himself has any part of the debt unpaid and a possible reason for resorting to the security for payment. See note and cases collected 99 Amer. St. Rep. 483; 9A.L.R. 1596, 1600; Neptune Ins. Co. v. Howard, 3 Md. Ch. 332, 337; Swan v. Pattison, 7 Md. 164, 166; Grove v. Brien,1 Md. 438, 454; Virginia v. C. O. Canal Co., 32 Md. 501, 540. All authorities agree that this principle, whether embodied in a statute such as section 5 of article 8 of the Maryland Code or not, has no bearing on the secondary obligor's own right to indemnification from his principal for any payment he may be required to make on the debt. If full payment were required as a condition to the assertion of that right, then a secondary obligor whose entire worldly goods might be appropriated for payment of the debt, but might fall short of full payment, would be without any remedy. Precisely the same point has been decided, however, in Bullock v. Campbell, 9 Gill, 182, 184. "The plaintiff paid only a part of the money due on the note," said the court in its opinion, "and it is insisted that he must pay the whole of it before he can sue for the money paid by him. This would be true, if the suit was instituted upon the note itself. But why not be permitted to sue for and recover that which he has been obliged to pay?" And recovery was allowed. And see authorities reviewed in notes in 134 Amer. St. Rep. 557, 565, and 7 L.R.A. 84.

Finding no legal insufficiency in the declaration, we have to reverse the judgment against the plaintiff on demurrer.

Judgment reversed, and case remanded for further proceeding,with costs to appellant.