Booth v. Hall , 6 Md. 1 ( 1854 )

Mason, J.,

delivered the opinion of this court.

In this case the plaintiff sued and declared in debt, and the defendant pleaded -non assumpsit. Thereupon the counsel entered into the following agreement, to wit: “It is agreed by and between the undersigned, that all errors in pleading in this case shall be waived, and that any matter or thing may be given ip evidence by either party at the trial thereof, which could be given in evidence if the same had been properly pleaded.” In the progress of the trial, to support his action, the plaintiff offered in evidence a covenant between himself and defendant, to the admissibility of which, under the pleadings and the agreement, the latter objected, and the first question therefore to be settled by this court, and the one which we think will determine the case, is, whether, under the agreement to cure defective pleadings, this testimony was admissible. It was conceded by the plaintiff as settled law, that as all the several instalments or payments provided for by the covenant were not due at the time the suit was instituted, an action of debt would not lie to recover such of them as were due, and that therefore the present action cannot be sustained on this covenant. To remedy this error, we must give to the agreement the effect of converting the action of debt into one of covenant. We do not think it wilL admit of such a construction. The office of the agreement was simply to cure defects or errors in pleading in this case. The books all concur, that the writ which determines the form of action is no part of the pleadings, but that they commence with the declaration, and therefore all the alterations or amendments which might be made in pleading could not affect the writ. The most therefore that could be done under this agreement would be to amend the pleadings in an action of debt, as this is, and it would be impossible so to shape a declaration in debt as to allow a covenant, like the one in this case, to be offered in evidence in support of it.

As this agreement was entered into by the attorneys, it is to be presumed that they used the word pleading in its legal sens.e? and did not intend it to have any broader signification. The dissimilitude between the declaration and the plea, of itself, sorely furnished sufficient material for the agreement to operate upon, without making it apply to errors in the writ or form of action.

For the rule which we have adopted for construing agreements, see the case of Marshall vs. Haney, 4 Md. Rep., 506, and the cases there cited.

As this point concludes the case, we will, without discussing the other questions presented by the record, reverse the judgment, but without prejudice.

Judgment reversed and procedendo refused.

Tuck, J., dissented.