Flack v. Garland , 8 Md. 188 ( 1855 )

Le Grand, C. J.,

delivered the opinion of this court.

The bill in this case prays an injunction (which by the Superior Court of Baltimore city, where the bill was filed, was granted) against a judgment of Baltimore county court recovered against the appellant, Flack, by Nathaniel Garland, of whom the appellee is executrix. The judgment was rendered for a debt due by Flack to Garland and Elwell, of whom Garland was survivor. The bill alleges that Flack failed in business in the year 1842; that after some time had passed, during which he was endeavoring, having the confidence of his creditors, to make most available for their satisfaction the means left to him, he finally proposed to his creditors a composition, by which on paying fifty cents in the dollar he was to be released from his liabilities, determining and declaring that if such composition should fail to be effected, he would seek release by application for the benefit of the insolvent laws. The bill states that among his creditors, whose good will he thus had, was Garland, who, although during the suspense of the appellant’s affairs before the composition was projected, had obtained judgment, yet had taken that step with no adverse purpose, but merely to preserve the highest evidence of his claim. The bill states that after judgment was thus had by Garland, (which was rendered in the year 1843,) he, (Garland,) in the year 1846, and at the period when the composition referred to ivas in train, acceded to it and agreed, like the rest of the appellant’s creditors, to accept the one-half of the amount of his claim in satisfaction of it; to be paid on demand made by Garland, in money, or by the appellant’s note at four months. The appellant states that, by Garland so acceding to the composition, all his debts being provided for, he forbore applying for the benefit of the insolvent laws, and again embarked in business; — but that meanwhile Garland died, without receiving or applying for the composition money; and that his executrix, the appellee, unmindful of the adjustment thus binding her testator, was about to issue execution upon the judgment. The bill further states that Garland went forth among the other creditors to solicit and urge them to come into the composition, representing to them that he had acceded to it — stating1 that fact to persuade them to follow his example.

The proceedings in the cause show that the judgment was obtained at January term 1843; and that on the 5th January 1850 a scire facias was issued, on which there was a fiat, and then an appeal to this eourt, where the judgment was affirmed at December term 1852.

The only testimony in the cause which can be regarded as tending, in any degree, to show that Garland had agreed to the composition alleged in the bill, or, that by his persuasion or statements, he induced others to assent to such an arrangement, is that of the Messrs. Masons. This testimony is very far- from being decisively conclusive of the question when the other testimony is considered in connexion with it. But, be this as it may, it is not important to the decision of the case we should pronounce on its efficacy, for, even were it conceded that the composition had been clearly made out, yet the complainant would not be entitled to the relief which he seeks. By its terms the appellant was to pay the sum agreed, to be accepted, either in cash or in notes, at four mónths. It is not pretended he did either, nor that he ever made an effort to do so. He did nothing so far as this record discloses until June 1853, when he filed his bill praying that the execution of the judgment might be enjoined. For several years he did nothing; he neither paid the money, delivered the notes, or offered to pay the money or to deliver the notes. We therefore think, on his own showing, that he has no equity. In the case of Green & Trammell, vs. Trieber, 3 Md. Rep., 36, this court said, when speaking of arrangements similar to the one relied upon here, that C( tire debtor offers his property to his creditors in payment of their claims, or for distribution according to such priorities as he may prescribe. Payment being the proposed object of the assignment, it must not contain any provision to defeat or hinder this purpose, beyond such reasonable delay as may be incidental and necessaiy to the proper execution of the trust.” Eveiy composition, in its very nature, contemplates payment in conformity with its terms. In the case now before us, if any was agreed upon, the appellant has wholly failed to perform his part of the contract. If he wished to avail himself of an arrangement for his benefit, he should have performed his part of it, or, at least, offered to do so. His failure to comply is a complete answer to his present complaint.

Decree affirmed with costs.