70 A. 106 | Md. | 1908
This is the defendants' appeal from a judgment in favor of the plaintiffs entered in the Baltimore City Court. The suit was an action of assumpsit, and was brought under the Practice Act. The declaration contains the six common counts and one special count. The special count alleged that the plaintiffs were licensed real estate brokers in the city of Baltimore, and that on or about the 17th day of July, 1907, the defendants employed them to sell certain property, which is particularly mentioned in the count, and that they promised and agreed to pay to the plaintiffs a commission of two and a-half per cent as compensation for their services; and that in pursuance of said employment the plaintiffs sold the property for seven thousand dollars to Isaac Kader, and that the purchaser entered into a contract with the defendants to purchase the same, and did purchase the same by the payment of the balance of the purchase price in accordance with the terms of the contract; that by reason thereof the plaintiffs were entitled to receive from the defendants the sum of one hundred and seventy-five dollars; that the plaintiffs have demanded of the defendants the payment of said sum, but that the defendants have failed and refused to pay the same, and continued so to do. *282
A proper account was attached to and filed with the declaration, and an affidavit as required by the Act was annexed to the narr. The defendants were summoned to the October Rule Day, and within fifteen days thereafter filed pleas to the action.
To the first six counts of the narr they pleaded that they never were indebted as alleged; and for a second plea they averred that they never promised as alleged and for a third plea they said, that the plaintiffs did not, as real estate brokers, sell the property in said count mentioned to the said Isaac Kader for the defendants at and for the sum of seven thousand dollars, and that the said Isaac Kader did not pay these defendants seven thousand dollars for said property, and that the defendants never were indebted as alleged in said count.
On October 30th, 1907, the plaintiffs filed a motion for a judgment by default against the defendants for want of sufficient pleas and affidavit of defense. On January 24th, 1908, this motion was heard by the Court, and on that day judgment by default was entered, and on the same day the judgment was extended for one hundred and seventy-eight dollars and seventy-three cents, damages assessed by the Court and costs of suit. The affidavit attached to the pleas is in proper form, and it is not claimed that it is in any manner defective or insufficient, and to it is appended a certificate of the defendants' counsel stating that he had advised the party making the affidavit to the pleas to do so.
Upon this state of facts, the single question for our decision is: Did the defendants plead a good plea to the declaration? If they did, the Court had no right to enter a judgment as by default against them, because under the statute no such judgment can be entered where there is a plea, properly verified, showing a good defense to the action. In Gemmell v. Davis,
The general issue plea of non-assumpsit filed by the defendants constituted a good plea to the action, and the Court was, therefore, without power to enter the judgment appealed from. That judgment, as well as the judgment by default, must be stricken out, and the case remanded for a trial upon the merits.
It was contended at the hearing that the defendants' third plea, which was in express terms limited to the special count of the declaration, is bad, because it is a plea which amounts to the general issue. If this were true, it ought to have been demurred to; but we do not think it is such a plea. A plea is never objectionable on this ground, unless it sets up matters offact, merely amounting to a denial of such allegations in the declaration as the plaintiff would on the general issue be bound to prove in support of his case, and the reasons why such a plea is held bad are: "First, because such special plea, if considered as a traverse, tends to needless prolixity and expense, and is an argumentative denial, and a departure from the prescribed forms of pleading the general issue; and, secondly, if viewed as a plea in confession and avoidance, it does not give color or plausible ground of action to the plaintiff." 1 Chitty onPleading, 527.
The plea is a specific traverse of material averments of the special count, and upon failure of the plaintiffs to prove any *285
one of such material allegations upon the trial the verdict would be for the defendants under this count of the narr. Bullen Leak Precedents of Pleading, 435; 16 Ency. Pl. Prac., 542;Baltimore Ohio R.R. Co. v. Ritchie,
Judgment reversed, with costs, and case remanded.