Oldenburg & Kelley v. Dorsey , 102 Md. 172 ( 1905 )

This action was brought by the appellee against the appellantsand George Billings. Judgment was rendered against all the defendants, but Mr. Billings did not appeal. It is well settled in this State that when a judgment is rendered against several persons jointly all must unite in an appeal. Poe Practice, sec. 825 and cases there cited. The rule was applied in Lovejoy v.Irelan, 17 Md. 525, to an appeal from a decree of a Court of equity, but that was subsequently changed by statute. The rule, however, remains unchanged as to cases at law as the statute only embraced appeals from final decrees, and orders in the nature of final decrees, passed by Courts of equity. The proper practice for the appellants was to apply to this Court for a writ of summons and severance, Mottu v. Primrose, 23 Md. 482, but no such application was made. Upon service of that writ Billings could have come into this Court and united in the appeal, or, upon his refusal to do so, a judgment of severance could have been passed by this Court.Cumberland C. I. Co. v. Jeffries, 27 Md. 535. The appellee did not make a motion to dismiss the appeal and the attention of the appellants was not called to this difficulty at the hearing. In passing on a motion to dismiss in Mottu v. Primrose,supra, our predecessors overruled it and ordered a writ of summons and severance to issue and, as the case was fully argued, we concluded to consider it on its merits, as, under the circumstances, injustice might have been done the appellants if we dismissed their appeal without giving them an opportunity to move for a severance, although we do not mean this to be taken as a precedent which must be followed in all similar cases. As we have reached the conclusion that there were no reversible errors in the rulings of the Court below, no injury will be done either side by dismissing the appeal, but if we had determined otherwise, the appellants could not have gotten the benefit of it unless we had postponed a decision of the case on the merits until after the writ of summons and severance had been issued, and the proceedings thereunder disposed of. For, inasmuch as the judgment is against Billings and the appellants jointly, he would have the right to determine whether he would unite in the appeal and thus have the judgment of this Court for or against the three defendants jointly, or whether he would refuse to do so and thereby enable this Court to order a severance. It is clear, therefore, that before we could properly enter up a judgment of affirmance or reversal of the judgment below, it would be necessary to issue a summons for Billings, unless he voluntarily appeared, to determine whether there should be a severance. Having sufficiently referred to this question to explain the reasons for the action we will take, we will now consider the rulings of the Court below.

The appellee was engaged in the lumber business, and George Billings, who was a carpenter and builder, was employed in the erection of some houses for the appellants, Oldenburg Kelley, who were partners. According to the appellee's testimony he sent to Billings an estimate of the cost of the lumber wanted, and Billings agreed to the price, but the appellee refused to deliver the lumber unless he knew where the money was to come from. Billings told him that Oldenburg Kelley would attend to that, whereupon the appellee saw Mr. Oldenburg and told him what Billings said. The most important part of the testimony is thus stated in the record: "I said, now, Mr. Oldenburg, will you give me an order for these goods, and he (Oldenburg) said: Mr. Dorsey, you deliver these and I will pay for them, or we will pay for them, everything that goes in those buildings we will pay for. You mean to say you will pay me. Yes, I will. I understand you will pay me for the goods when delivered. Oldenburg replies, yes. You charge them to Billings, we are responsible for them, and I give you an order for it, therefore you will hold me aswell as Billings for the amount." That was denied by Billings and Oldenburg, but the lumber was furnished and charged to "George Billings, for Oldenburg Kelley, Highland Ave., near Gough St." A verdict was rendered in favor of the appellee. During the trial exceptions were taken to granting the second and sixth prayers of the plaintiff and to the rejection of the defendants' third, fifth, sixth and eighth.

The plaintiff's two prayers related to the liability of Oldenburg Kelley and properly submitted the question to the jury, according to the theory of the plaintiff. It was contended by the appellants that a "paper writing" which passed between Dorsey and Billings was the foundation of the contract between them, and as these prayers ignored that contract, they were liable to mislead the jury. A sufficient reply to that suggestion is that this "paper writing" is not in the record, and hence we cannot determine its effect. So far as the record discloses the only writing between them was an estimate for the lumber, and if there was anything in that which showed the terms of the proposed sale, who was to be responsible for payments, whether the sale was to be made without security, or anything else that the appellants supposed material, it should have been included in the record. The mere statement that the appellee submitted an estimate to Billings, and he accepted it, is manifestly insufficient to show a binding contract on Dorsey to deliver the lumber to him, regardless of his ability to pay for it, or the liability of the owners of the building for it, if, as the plaintiff claimed, they obligated themselves for it.

The defendants' third prayer asked the Court to instruct the jury that the plaintiff could not recover from Oldenburg Kelley, unless the jury found that the materials were sold and delivered to them "upon their special and exclusive credit." It must not be forgotten that this was an action against the three defendants, as joint original promisors. The declaration contains the common counts against "George Billings, individually, and August J. Oldenburg and John B. Kelley, co-partners trading as Oldenburg Kelley." The theory of the plaintiff was that Billings and this firm were jointly liable, and his testimony tended to establish that fact, as will be seen by that already quoted and other portions of it in the record. We said in the opinion delivered on a motion for reargument in the case of EastBaltimore Lumber Company v. Waldeman et al., 100 Md. 689, filed April 12th, 1905, that "In cases where the person to whom the goods were sold and delivered and the one who orally undertook to be bound for their price are sued together, as joint original promisors, the action will not be defeated as to the latter by showing that credit for the goods was given partly to one and partly to the other defendant, as the Statute of Frauds does not extend to a joint promise by two persons for the benefit of one of them." We cited 29 Am. Eng. Ency of Law (2 ed.) 923-4. If it was a joint promise of both for the benefit of the two, as to which there was some evidence from which that could be inferred, the plaintiff's case was still stronger. The distinction is made on those pages of the Encyclopedia between the liability on an oral promise in respect of a transaction forthe benefit of a third person, and that on a joint undertaking by two persons for the benefit of one of them. See also Browneon Stat. of Frauds, sec. 197.

In addition to what we have said above, it was held in Small v. Schaefer, 24 Md. 143, that "whenever the main purpose and object of the promisor is, not to answer for another but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another." That was followed in Little v. Edwards, 69 Md. 499. Manifestly if the plaintiff's evidence was correct, the main purpose and object of Oldenburg Kelley was not to answer for Billings, but to obtain the lumber for their own buildings, and hence was not within the statute. The third prayer was properly rejected.

The fifth was likewise properly rejected. In addition to what we have said above, much of which might be repeated as to this prayer, it is objectionable on other grounds. The evidence does not show "that credit was given the defendant Billings at the time of the acceptance of the estimate offered in evidence" and "that the defendants, Oldenburg Kelley, guaranteed the payment of the sum mentioned in said agreement." On the contrary, the plaintiff's testimony tended to show that they were original promisors and not merely guarantors of the debt of Billings, while the defendants' evidence denied any promise or undertaking on their part. Then again, inasmuch as the law is as stated above, this prayer would have been altogether misleading, as it may be that credit was given to Billings but also to Oldenburg Kelley.

It is only necessary to say in reference to the sixth that the "agreement in writing" and the "supplement to said agreement" therein referred to are not in the record, and the presumption is that there was nothing in them to justify the granting of the prayer, as the ruling of the Court is presumed to have been correct unless there is something in the record to show the contrary.

The eighth was properly rejected. The seventh, which was granted, instructed the jury that Billings was entitled to recoup against the plaintiff's claim such sum as they found thedefendant lost by reason of the delay in furnishing the materials. The evidence tended to show that the plaintiff contracted to furnish the materials to Billings, as rapidly as wanted, and that all of the defendants were to be liable for the amount. Thiseighth prayer asked the Court to instruct the jury that if they found the plaintiff contracted to furnish them to Oldenburg Kelley, as rapidly as wanted, and failed to do so, etc., then the defendants, Oldenburg Kelley, are entitled to off-set or recoup against the plaintiff's claim such sum as the jury may find "the defendants" lost by reason of such delay, etc. In addition to the objection that there was no evidence of an agreement to furnish the material to those parties as rapidly as wanted, this would have been very misleading after granting the seventh prayer. They had already been told that Billings could recoup for such sum as the defendant lost by reason of the delay in furnishing him the materials, and the Court was asked to instruct them that Oldenburg Kelley could recoup for such sum as they found "the defendants" lost. If the jury found for the plaintiff against the three defendants, whatever they allowed by way of recoupment against the plaintiff's claim was to reduce the verdict against the three and not against Billings or the firm separately. If there was any error it was in granting theseventh prayer, but the defendants cannot complain of that.

So without further discussion of them, we are of the opinion that there was no reversible error in the rulings of the Court, but for the reason stated above we will dismiss the appeal, instead of affirming the judgment.

Appeal dismissed, the appellants to pay the costs.

(Decided November 16th, 1905.)