Rich v. Boyce

39 Md. 314 | Md. | 1874

Grason, J.,

delivered the opinion of the Court.

The first exception was taken to the refusal of the Court below, to enter a judgment by default against the plaintiff, for an alleged insufficiency of his answer to the bill of discovery. Section 69 of Article 75 of the Code provides, that parties may be required ccto answer a bill of discovery only which may be filed by the second Court, after the appearance Court, in cases and under circumstances where they might be compelled to answer such bill of discovery, by the ordinary rules of proceeding in chancery; and if the plaintiff shall fail to comply with any such order to answer any bill for discovery only, it shall be lawful for the Court, on motion, to give the like judgment for the defendant, as in cases of non-suit.” The motion was properly overruled in this case, first, because the bill of discovery was not filed within the time required by the Code ; second, because no order had ever been asked for or passed by the Court; and third, because the answer filed voluntarily by the plaintiff, was in all respects sufficient, as it fully replies to the interrogatories filed by the defendant.

The second exception was taken to the refusal of the Court, to remand the transcript of the record to the Superior Court of Baltimore City, from which the case had been removed for the purpose of having it corrected. The defect, which it was alleged required correction, consisted in the statement in its beginning that the writ was sued out by Thomas R. Rich. This error in the recital of the clerk, was however corrected by the writ itself, which was set out in full, and showed upon its face that it was sued out by James Boyce, and commanded the sheriff to summon Thomas R. Rich, to answer an action of James Boyce against him. The record, as it then was, showed upon its face precisely what would have appeared had it been sent back to the Superior Court for correction in this particular. The record also showed that Thomas R. Rich had appeared and pleaded to the action; had verified his plea by affidavit, in which he styled himself “the above named defendant ,” and had filed other papers in the case entitled, “James Boyce vs. Thomas R. Rich,” under these circumstances, we think that there was no necessity for correcting the record, and that the Circuit Court very properly refused to remand it.

The third, exception was taken to the overruling of the demurrer to the declaration. The defendant had been summoned by his full name of Thomas R. Rich, and in the declaration, he was described by his Christian name, and the initial letter of his middle name, and as “the defendant.” By the name of Thomas R. Rich, he had appeared and pleaded to the action, and in the affidavit to the declaration, as well as to the plea, his name is given in full. In other papers filed in the c^use by the appellant, he gives his full name and describes himself as “the said defendant.” Under these circumstances, we think he is estopped from setting up a misnomer in the narr. But, even if the objection to the narr. in this particular was a valid one, and the defendant was not estopped from availing himself of it, he could do so only by a plea in abatement, and not by demurrer. 1 Chitt. Plead., 451; Clerk of Trustees of Taunton Market vs. Kimberly, 2 Blacks. Rep., 1122, 1123.

The fourth exception is identical with the first, and what we have said in disposing of that, disposes also of this.

The fifth exception is to the ruling of the Circuit Court, admitting in evidence the note upon which the suit was brought. It was contended, that there is a variance between this note and the one described in the declaration, the former containing a recital, that it was secured by three hundred shares of Parkersburg Branch Railroad Company’s stock, while the declaration does not so describe it. The above recital formed no part of the obligation, which the appellant assumed by the execution and delivery of the note to the appellee. By said note he assumed the obligation to pay four thousand, five hundred dollars, to the appellee ninety days after its date. In declaring upon a written instrument, it is not necessary to set out its very words, but it may be pleaded according to its legal effect, and only its obligatory parts need be stated. 1 Chitt. Plead., 305; Walsh vs. Gilmor, 3 H. & J., 408. The note was therefore legally admissible in evidence under all the counts of the declaration, without setting out in the declaration the recital that, the note was secured by the stock.

The sixth exception was taken to the ruling of the Court below, refusing to permit the appellant to offer evidence of the market value of the pledged stock at the time it was pledged, as well as on the 20th day of June, 1870. This proof was offered upon the theory that the appellant, by delivering up to the railroad company the certificate of stock No. 727, and taking a certificate of the same number of shares of the same stock in his own name, had thereby converted the certificate No. 727 and the stock it represented to his own use. By the power of attorney on the back of the certificate, which is proved to have been executed by the appellant, the appellee was authorized to have the stock transferred to his own name upon the books of the company ; and the certificate shews upon its face that this could be done in no other way than by returning the certificate to the company and having another issued to himself. The evidence offered in this exception was therefore clearly inadmissible.

The seventh exception is to the refusal of the Court below to permit evidence to be offered to show that the appellant had never at any time or in any manner authorized the appellee to surrender the stock pledged, or to have it re-issued to the appellee in his own name. As wé have shown in considering the preceding exception, that such authority was given by the power of attorney indorsed on the back of the certificate, the proof offered was properly rejected.

The eighth exception was taken to the rejection of proof of usage or custom in Baltimore City among brokers, that a pledgee has no right to surrender to the company issuing it, the stock pledged, and have re-issues in his own name; but that the pledgee must retain the same as pledged until default, and if no default take place, to return the identical stock pledged to the pledger. The contract between the parties expressly conferred authority upon the appellee to have the stock transferred to his own name, and as that contract is perfectly plain and unambiguous in its language and terms, no evidence of usage or custom was admissible to explain or control it.

The ninth exception was taken to the refusal of the Court to permit evidence to be given that the appellee had neither made a demand for the payment of the note, nor offered to return the stock which was pledged. The appellee was not bound to make any demand for payment of the money due upon the note, the suit itself being all the demand which the law required. Nor was he obliged to tender a return of the pledge. His contract gave him the right to hold the pledge until the note was paid. All that was required of the appellee was to have the stock ready to be returned upon the payment of the money, to secure which the pledge was given. The evidence offered was therefore properly rejected.

The tenth exception was taken to the granting of the appellee’s prayer, and the rejection of the six prayers •offered by the appellant.

The first and second prayers of the appellant are based upon the theory that the appellee had no authority to have the stock, which was pledged, transferred to his own name upon the books of the company, and that such transfer amounted to a wrongful conversion of the stock to the appellee’s own use, which would prevent him from recovering upon the note sued on. What we have said upon the sixth exception applies to these two prayers. Bo far from the transfer of the stock to the appellee’s own name being a wrongful conversion, it was the mere exercise of an undoubted right conferred upon him by the appellant. Without such a right the pledge would have been of doubtful security, as the stock would have been liable to execution or attachment by any creditor of the appellant. These two prayers were properly rejected.

The third, fourth and sixth prayers present propositions which are almost identical with each other, and will therefore be considered together. The third asks the instruction that there was no evidence of a demand of payment before the suit was instituted, and no evidence of notice to the appellant of the appellee’s intention to exchange, convert, or dispose of the pledged stock; the fourth, that the plaintiff was not entitled to recover unless the jury should find from the evidence that there was a demand for payment of the note before suit brought, and an offer to return the certificate of stock to the appellant ; and the sixth, that there was no evidence tending to show such demand and tender. The propositions contained in these prayers, so far as demand for payment and tender of a return of the stock are concerned, have been settled by what we have said in considering the ninth exception. The suit was a sufficient demand, and the appellee had a legal right to hold the pledge until the debt was paid. Under the contract between the parties no notice of the intention to have the stock transferred was necessary. These three prayers were therefore properly rejected.

(Decided 28th January, 1874.)

The fifth prayer asked an instruction that there was no sufficient evidence tending to show that any power of attorney was ever given by the appellant to the appellee, which authorized the latter to assign, transfer, or surrender to any one the certificate of the pledged stock.

The power of attorney was indorsed upon the back of the certificate, and the proof shows that it was signed by the appellant, and the certificate thus indorsed was delivered to the appellee. The proof further shows that the power of attorney authorized and empowered the appellee to have the transfer made. The fifth prayer was also properly refused.

The appellee’s prayer asked the Court for an instruction that if the jury should find from the evidence that the appellant signed and indorsed the note, sued on, and delivered the same to the appellee, that the appellee was entitled to recover the principal sum of said note, and legal interest thereon, in the discretion of the jury, from its maturity.

It having been shown that nothing which was done by the appellee with respect to the certificate of stock which was pledged, which he had not a legal right to do under his contract, and no evidence having been offered tending to show any legal defence to the action, the prayer of the appellee presented a legal proposition which could not be controverted, and it was properly granted.

As we find no error in the rulings of the Circuit Court, its judgment will be affirmed.

Judgment affirmed.