165 A. 319 | Md. | 1933
By her bond dated April 13th, 1922, the appellant, Ida Skipper Parks, promised to pay to Armour Fertilizer Works (a New Jersey corporation, hereinafter called Armour) $7,500 on or before February 1st, 1923, and, to secure the payment of the debt so evidenced, executed and delivered a mortgage to Armour on property in Yonkers, New York. By assignment dated December 15th, 1923, Armour assigned the mortgage to Thomas H. Skipper, an attorney at law, who was also the brother of Ida Skipper Parks, the assignment reciting that it did "assign, transfer and set over unto Thomas H. Skipper of Queen Anne's County, State of Maryland, all its title and interest in and to the property acquired through mortgage of Ida Skipper Parks" dated April 13th, 1922, recorded in Westchester County, New York. Thomas H. Skipper died December 14th, 1929, and his widow, Nannie Brice Skipper, appellee, was appointed administratrix of his estate. Amongst his papers she found the mortgage to Armour and the assignment from the mortgagee. Suit was brought by the administratrix against Ida Skipper Parks *390
in assumpsit on the common counts and a special count, on the covenant in the mortgage to "pay unto the said party of the second part (Armour Fertilizer Works), its successors or assigns, the sum of money mentioned in the said bond or obligation." Code, art. 75, sec. 4; 1 Poe, Pl. Pr., sec. 63A. The defendant filed the general issue pleas, never promised, never indebted, and payment. From a judgment for the balance which the court, sitting as a jury, found to be due and owing, the defendant appealed. The plaintiff offered in evidence the mortgage as the evidence of debt, and the assignment as its right thereunder to a judgment on the covenant of the defendant to pay, and thus relied on the presumption arising from the execution and possession of a contract under seal. Brantly on Contracts (2nd Ed.), 125; 41C.J. 793, 794; Cumberland Coal Iron Co. et al. v. AnnParish,
The defendant offered evidence of payments made to Armour and to her brother to offset the plaintiff's claim, which the court held to be short of the demands, and rendered a verdict for what it found to be the balance of principal and interest.
The defendant, at the conclusion of the evidence, offered two prayers for an instructed verdict, the first that there was no legally sufficient evidence to entitle the plaintiff to recover, the second, "no legally sufficient evidence to charge the defendant upon the cause of action upon which this suit is brought."
The evidence was that the assignment of the mortgage already mentioned was the only transfer or assignment of the mortgagee's (Armour's) claim against the defendant, the bond which the mortgage secured having remained in the files of Armour's attorney until produced by him at the trial. The defendant claims that under the law of New York the assignment of the mortgage was not sufficient to assign the debt and was nugatory. If this is correct, it would go to the plaintiff's right to recover on the covenant to pay contained in the mortgage. *391
The defendant became obligated to Armour as guarantor on notes of customers, which had been taken by her husband (now deceased), long an agent of Armour for fertilizer, and the mortgage was given in settlement of those notes. In the interval between the execution of the bond and mortgage and its maturity, it was agreed that an effort be made to collect the notes so as to reduce as much as possible the defendant's liability on the mortgage. The defendant's attorney, Herbert E. Perkins, collected and paid to Armour from May 5th, 1922, to November 13th, 1923, $3,605.02. By his check of November 6th, 1923, he paid to the defendant's brother, Thomas H. Skipper, $1,943.95, one of the Armour notes which had been reduced to judgment, and in addition to this, collections, after the Armour settlement, amounting to $169.31. November 12th, 1923, $3,000 was paid to Armour by a check signed "Thomas H. Skipper, Atty." There is no word in the record as to whose money it was, except that it is contained in memoranda of payments made in 1923 and 1924, some of which were noted as made to or for "I.S.P." In the same account or memorandum is $1,557.12 noted as paid "Armour Co." December 17th, 1923, which was the amount turned over by Thomas H. Skipper to Mr. Rowland K. Adams, of the Baltimore bar, who represented Armour in the final settlement between it and the defendant. In addition to the payments noted, Arthur S. Skipper, the defendant's nephew, testified that on November 7th, 1922, his uncle asked him for $1,500 of money he had for the settlement of his aunt's affairs, which he gave him, taking a receipt which stated that it was "to be used for the purpose of adjusting claim of Armour Fertilizer Works belonging to Ida Skipper Parks," and signed, "Thomas H. Skipper, Atty." On November 12th, according to the record, "he took his uncle exactly $500 because his uncle had made the final check, that is, figuring the amount of money he had in hand, and that cleared the matter up, that is, the Armour claim, so his uncle told him." The receipt which he took was for $500 "for I.S. Parks to be used in part settlement of claim of Armour Fertilizer Works." We shall not attempt to reconcile *392 the figures, as that involves a question of fact concluded by the verdict.
When the settlement was had with Mr. Adams, he testified "that at that time or just prior, there were two mortgages on two properties of Mrs. Parks on record, one in Queen Anne's County and the other on the Yonkers property, and I believe the release of both these mortgages had been prepared. I am not sure whether Mr. Skipper had requested that, or whether it was done as a routine matter by the Armour Fertilizer Works, but I know before the final settlement was made Mr. Skipper requested that the mortgage in Queen Anne's County be released and the mortgage in Yonkers assigned; that the mortgage on the Queen Anne's County property was released and given to Mr. Skipper at the time of the settlement; that the mortgage on the Yonkers property was assigned by Armour to Thomas H. Skipper; that I have no recollection of any statement made to me only that mortgage was assigned to him." Mrs. Parks was not present then or at any time after the execution of the mortgage in 1922. Mr. Adams also testified that the original bond was and had been in his possession ever since "the final settlement and was never delivered to Thomas H. Skipper."
It undoubtedly was, after the request of Thomas H. Skipper, the intention of the mortgagee to transfer to Thomas H. Skipper, and of the latter to take, whatever of security Armour had for the defendant Ida S. Parks' debt. If the transfer had been of a Maryland mortgage, the assignment of the mortgage would have had that effect. Code, art. 66, sec. 25 (Act of 1892, ch. 392);Dickey v. Pocomoke City Nat. Bank,
We are not controlled entirely by what the parties did, but may, in determining what they did, ascertain, if we can, what they intended to do. In Aldridge v. Weems, 2 G. J. 36, 47, it was said: "The only question put in issue by this bill and answer, is, whether it was necessary to give legal effect to this assignment, that there should be a delivery of the mortgage by Tongue to the complainants. In examining this case, it is necessary to keep constantly in view, that this *393
is not a mortgage or deed that requires delivery to give it legal effect, but an assignment of Tongue's interest in the mortgage, that may be good and operative without actual delivery, if there is evidence to shew the party intended it, to transfer his interest in the thing assigned." The assignment, in Tongue's handwriting, was found among his papers after his death. SeeCarson v. Phelps,
What has been said of the first prayer applies with equal force to the second, the defendant's theory being that, assuming the plaintiff's evidence legally insufficient to support the special count, it would not make a prima facie case under the common counts. Inasmuch as we find the evidence under the special count legally sufficient, it can support a verdict without reference to the measure of proof required under the common counts.Conservation Company v. Stimpson,
The defendant also contends that the payments made by Thomas H. Skipper were voluntary, without the authority of the defendant, and that he could not, therefore, make himself her creditor.Dougherty Co. v. Gring,
Another point which the defendant urges with great force is that Thomas H. Skipper was her attorney and as such could not acquire an interest in the subject-matter of the *396
suit adverse to hers without her authority, consent, or concurrence. This does not appear to have been specially urged at the trial (Code, art. 5, sec. 10), no ruling having been made with reference to it, unless it be inferred from the burden of proof prayer granted the defendant. The question is largely one of ethics, but may be a determining factor in the adjudication of claims between the attorney and his client. It has been the subject of so many controversies in this court that it is not necessary to look elsewhere for authorities. It is settled that in dealing with the client's property the burden is on the attorney to show his good faith. McLean v. Maloy,
The only other question submitted is on an exception to the refusal of the trial court to allow Herbert E. Perkins, who appears to be the only attorney making collections on the Armour notes, to testify, when recalled by the defendant, as to when he first heard of the assignment to Thomas H. Skipper. He had already testified that he was not present when the settlement with Armour was made and knew nothing about it. Even if he had been permitted to answer, we fail to see how it would have reflected on any issue involved in this case, unless he had been asked to relate any information obtained from Mr. Skipper.
Finding no error in any of the rulings of the court, and the findings on the facts not being reviewable, the judgment will be affirmed.
Judgment affirmed, with costs. *397