delivered the opinion of the Court.
This is an appeal from a judgment entered by the Circuit Court for Garrett County in favor of S. Earl Reece, appellee (plaintiff below), in the amount of $34,200, for alleged personal
The parties to this appeal are brothers, and both live in Westernport, in Allegany County. Ida M. Rhoads, was their aunt and also a resident of Westernport until her death on December 30, 1959. Upon her death the appellant, Robert M. Reece, probated a Last Will and Testament dated March 22, 1956 in the Orphans’ Court for Allegany County and qualified as administrator cum- testamento wmexo of her estate. On August 5, 1960, four days before the administrator’s notice to creditors was to expire, the appellee, S. Earl Reece, filed a claim against the estate in the amount of $53,500, a claim which the administrator rejected in writing on October 10, 1960. Earl then filed suit on April 7, 1961 in the Circuit Court for Allegany County; the case was later removed to Washington County, and then removed again to Garrett, where it was heard by the court without a jury on January 17,1964.
Plaintiff claimed in his declaration that he had rendered personal services of substantial value to the Woodland Lumber Company, a corporation of which both he and Miss Rhoads were officers, directors, and stockholders, from 1930 until its dissolution in 1952, and that' he ■ had given advice to Miss Rhoads individually in connection with her business and personal affairs from 1930 until the date of her death in 1959. His cause of action is based upon two written documents, not under seal, both of which are dated December 2, 1949. Both are set forth in the footnote below; both are rough in appearance, and the typing on each, very poor. 1
The second witness was Arthur P. Myers, a handwriting expert of approximately forty years’ experience, whose qualifications were admitted. After familiarizing the court with the methods he employed (and with the circumstances under which he was retained as an expert in this case), he testified that the
The third witness was the plaintiff, S. Earl Reece. He testified that from 1930 until 1952 he was the “territorial manager for an outside business” located in Baltimore, Maryland, the nature of which was not made clear, from which he earned “approximately $4,500 to $5,000 a year.” However, he testified that he also had an association with Woodland Dumber Company “from 1930 until it went out of business” in 1952. Plaintiff regularly attended corporation meetings, and, from time to time, served as a director, as chairman of the board of directors, president, general manager, and auditor. Certified letters from a Philadelphia bank establish that Mr. Reece was authorized to draw checks on the company’s bank account. Certified copies of the articles of incorporation and of the minutes of various corporate meetings were introduced into evidence. The ownership of the company’s stock was testified to be as follows :
Mrs. Susanna Campbell 25 shares
Jeremiah T. Robinhold 25 shares
S. Earl Reece 15 shares
Ida M. Rhoads 685 shares
These 750 shares outstanding at $100 per share equalled the total $75,000 capital authorized by the company’s charter, as amended.
The plaintiff’s testimony does not reveal the nature of the services which he claims to have performed either for the lumber company or for Ida M. Rhoads individually. He did testify that he received “not one cent” from the corporation during its entire existence, and that he had “no salary arrangement whatever” with it. In reply to a question “Why didn’t you receive any money?”, he stated “Well, the Woodland Lumber Com
At the conclusion of Mr. Reece’s testimony the plaintiff rested his case. The defendant then moved: 1) to “strike out all testimony of the plaintiff, Earl Reece, pertaining to the services performed for Woodland Lumber Company and for his testimony pertaining to the officers of the
company”; 2)
for a dismissal on the ground that the plaintiff had shown no right to relief.
2
The lower court granted the defendant’s first motion; it withheld a ruling on the second. In its written opinion of July 31, 1964 the court ordered that judgment be entered in favor of the plaintiff, but only as to services performed during the period from 1930 to 1949. The court reached the conclusion that the plaintiff was not entitled to judgment for services allegedly performed for the period December 2, 1949 to December 30, 1959 by the following process of reasoning: 1. The contract did not recite the performance of any services after December 2, 1949 nor did it contain a promise to perform any
The appellee disputes the propriety of the action taken by the court below with respect to the defendant’s first motion. He urges us to hold that that court erred in striking the exhibits and testimony relative to the work performed by S. Earl Reece for the Woodland Lumber Company. These issues, however, are not properly before us. In the absence of a cross-appeal the appellee ordinarily cannot complain of adverse or erroneous rulings on the evidence and pleadings, even though they may be harmful or prejudicial.
Harrison v. Robinette,
The parties to this litigation entertain divergent theories of the law applicable to the facts as established. The defendant administrator, appellant here, contends that the plaintiff must offer proof that he performed the terms of the contract, that is, that he in fact rendered the services for which he now seeks to recover. He then postulates Art. 35, Sec. 3 as an insurmountable barrier, prohibiting plaintiff Reece from testifying: a) that he made a contract with Ida M. Rhoads; b) that he rendered services for her (before or after the date of the contract); or c) that he rendered services to the corporation (on the theory that, since decedent owned the large majority of the shares, the fiction of the corporate entity should be disregarded). The appellant also believes it encumbent upon the plaintiff to show affirmatively that he has
not
been paid. In view of the inability of the plaintiff to testify to the necessary facts, and in the absence of other, independent testimony, the appellant submits
The appellee, for his part, does not urge any particular interpretation of the Evidence Act upon the Court. Rather, he argues that he has proved the signature on the contracts , to be that of the decedent, in the manner prescribed by Code (1964 Cum. Supp.), Article 35, Section 12; that proof of a signature on a contract is prima facie proof of the truth of its contents; that an admission or recital in a written contract (otherwise sufficient) that it was made for a valuable consideration, in the absence of contrary evidence, entitles the plaintiff to judgment. Simply put, the appellee contends that the defendant administrator has failed to disprove the prima facie case established by the recital of a valuable consideration in the contract introduced by the plaintiff. The trial court awarded judgment on this theory.
We think that the plaintiff is right in asserting that a recital of facts which may constitute consideration in an unsealed written agreement, is prima facie evidence of those facts.
Glenn v. Grover,
A question presented by the defendant’s motion to dismiss, but which was apparently not argued before or specifically considered by the lower court and which was not briefed or argued before us, is whether the facts recited in the documents constituted sufficient legal consideration to support the promise of Miss Rhoads to pay for the past services of the plaintiff Reece. As we have indicated the documents are not under seal. They were both dated December 2, 1949 and those documents indicate that the services for the Woodland Lumber Company and for Miss Rhoads for the payment for which judgment was rendered, had all been rendered prior to the signing by Miss Rhoads of the two documents. This is recited in both documents. The second document recites that he had not been paid for these services by either the company or Miss Rhoads. In the second document Miss Rhoads promises to pay the plaintiff Reece for those services at the rate of $150.00 a month, without interest. She also promises to pay him for future services rendered the company and her by the plaintiff Reece and she recites that he “agrees to continue future services to the company for my benefit and future personal services to me.”
The general rule is that past consideration is insufficient to support a present promise.
Weil v. Free State Oil Company,
“Accordingly, something which has been given before the promise was made and, therefore, without reference to it, cannot, properly speaking, be legal consideration. * * *
“The doctrine that past consideration is no consideration represents the overwhelming weight of authority and is almost universally followed. This has been the law since early times.”
There have been several exceptions, however, to this general principle of law. One of them is that a present promise to pay in consideration of an act previously done at the request of the promisor will be enforceable as supported by sufficient consideration even though that consideration consists of an act previously done. The request of the promisor may be either express or implied. Our predecessors, in
Pool v. Horner,
“Where, however, services are rendered because requested as a matter of business and where consequently there is1 a contemporaneous promise implied in fact to pay for them, the weight of authority supports the validity of a subsequent promise defining the extent of the promisor’s undertaking.”
There is no evidence in the case which would indicate that the rendition of the services by the plaintiff Reece were presumed to be gratuitous. Although he was the nephew of the deceased promisor, he worked in Baltimore, Maryland, and the offices of the Woodland Lumber Company were in Philadelphia, Pennsylvania. There is no evidence that he was living in the household of his aunt or that the services performed, or to be performed, by him were household services of such a character as to be presumed to have been gratuitously rendered. On the contrary, it appears that they were business services in regard to which the presumption of gratuitous service does not apply. See
Provident Trust Co. v. Massey,
Although the two documents have certain statements testamentary in character, in our opinion they essentially represent contractual obligations which fix the time of performance by Miss Rhoads at the time of her death and from her estate. Our predecessors have held that a promise in a contractual instrument fixing the time for performance at or after death ordinarily will not impair the instrument’s validity as a contract.
Junkins v. Sullivan,
The claim of the plaintiff Reece was not barred by the provisions of the three-year Statute of Limitations, Code, Art. 57,
The plaintiff’s claim was also timely filed in the estate on August 5, 1960 and suit instituted within the six-month period after the rejection of the claim on October 10, 1960 as required by Code Art. 93, Sec. 119 (as amended by Chapter 12 of the Acts of 1959) and Section 120. Counsel for the appellant properly abandoned the defendant’s plea asserting this defense in the lower court and it is not asserted in this Court.
For these reasons, the judgment of the lower court will be affirmed.
Judgment affirmed, the appellant to pay the costs from the estate of Ida M. Rhoads.
Notes
. On oral argument the appellant informs us that there are five such documents signed by Ida M. Rhoads and all dated December 2, 1949 and strenuously urges us to hold that a fraud has been practiced by the plaintiff upon appellant’s decedent. However, argument is no substitute for proof; and in the absence of any evidence in the record before us which would tend to show overreaching or abuse of a confidential relationship by the plaintiff, we must conclude that such matters are not properly before us.
The first document reads as follows: “THIS agreement is a lien
. Counsel actually moved for a “directed verdict” which we have treated as a Motion to Dismiss under Maryland Rule 535; see Eastern Contractors v. Zinkand,