E. J. Codd Co. v. Parker , 97 Md. 319 ( 1903 )

This is a suit by the E.J. Codd Company of Baltimore City on an open account against Walter W. Parker.

The narr. contains the common counts and to it was annexed the affidavit required by the Practice Act of Baltimore City (New Charter, sec. 312). The defendant pleaded the general issue pleas and after the demurrer to his third, which was a special plea, was sustained, he filed an additional plea to the effect that he acted as agent of the Modified and Sanitary Milk Company in purchasing the goods sued for and that the plaintiff had elected to sue that company for said goods and had recovered judgment against it therefor. This plea was also demurred to, but the demurrer was overruled. Upon the general issue pleas, therefore, and upon this additional plea the case was tried.

It appears that on the 26th March, 1902, a motion made by the plaintiff for judgment by default for want of sufficient affidavit to the pleas was overruled. There was a judgment in favor of the defendant and this is the plaintiff's appeal.

At the trial below the plaintiff offered one prayer and the defendant two. The defendant's second was the only prayer granted. To this ruling the plaintiff excepted. But inasmuch as the bill of exceptions was not signed within thirty days from the rendition of the verdict the questions thereby presented cannot be considered on this appeal. This result however is of no importance because the questions presented by the exception are before us on the demurrer to the additional plea.

The two questions, therefore, which we are to consider are, first, was there error in overruling the plaintiff's motion for judgment on the ground that the affidavit to his pleas was defective; and, second, was there any reversible error committed in overruling the demurrer to the additional plea.

1. If the first question can be said to be properly before us we think there can be no difficulty in its solution. In the first place what is the language of the affidavit attached to the pleas? It is "that every plea so pleaded by the defendant is true, and all of the plaintiff's alleged claim is disputed, and that the affiant believes the defendant will be able at the trial to produce sufficient evidence to support the said pleas and that he is advised by counsel to file the said pleas." Following this affidavit is a certificate by counsel that he so advised the defendant making the oath.

The objection of the plaintiff to this affidavit is that although it alleges that the pleas are true; it fails to state not only what is due and owing, but it also omits to say that the defendant will be able at the trial to produce sufficient evidence to sustain the part disputed. It is difficult, however, to understand how the defendant could make and swear tosuch statements when he disputes the whole of the plaintiff's claim. The case of Adler v. Crook, 68 Md. 495, is conclusive upon this question, if any authority be needed. In that case this Court was considering and construing the same provision which is now embodied in section 312 of the new charter of Baltimore City, namely, sec. 171 of the old charter as amended by the Act of 1886, ch. 184. It provides that although the defendant, may have pleaded, unless such plea contains a good defense, and unless the defendant, or some one in his behalf, shall under oath * * state that every plea so pleaded by the defendant is true, and shall further state the amount of the plaintiff's demand, if anything, admitted to be due or owing and the amount disputed, c., the plaintiff shall be entitled to judgment. This section as now contained in the charter is an amendment of the Act of 1864, and the princpal addition it makes to that Act is the provision that the defendant "shall further state the amount of the plaintiff's demand, if anything, admitted to be due, and the amount disputed." JUDGE STONE speaking for the Court says in the case just cited that the effect of this amendment is that "if the whole claim sworn to by the plaintiffis disputed, then it must be distinctly stated in his affidavit that it is disputed." This is precisely what the affidavit in this case does, and hence there was no error in overruling the motion of the defendant. The other question arises upon the demurrer to the additional plea.

2. The question is whether having sued the principal and recovered judgment, the plaintiff can now sue the defendant who was the agent.

It was said in Henderson v. Mayhew, 2 Gill 408, that if the principal be not known at the time of sale, when he is discovered either he or the agent may be sued at the election of the vendor.Mayhew v. Graham, 4 Gill, 363. And the general principle appears to be established that where an agent contracts in his own name, without disclosing his interest, though in fact for the exclusive benefit of another person, who is afterwards discovered, the creditor may sue either, but after he has elected whom to sue and has sued either the agent or principal to finaljudgment, he cannot after that sue the other, whether the first suit has been successful or not. Poe Pl., sec. 378; Priestly v. Fernie, 3 Hurlstone C. 977; Curtis v. Williamson, L.R., 10 Q.B. 57; Fowler v. Bowery Sav. Bk., 113 N.Y. 450;Loge v. Weinstein, 35 Misc. Rep. 298. There are exceptions to this general rule, but the facts here involved do not require us to consider them.

It was also suggested that the plea is bad, because it sets up an estoppel which cannot be specially pleaded, but evidence of which must be adduced under the general issue plea. While this may be said of estoppel in pais (Poe Pl., sec. 696;Alexander v. Walter, 8 Gill, 247); yet it is equally true that where one party pleads a matter which he is estopped from setting up as against his opponent by reason of someadjudication the opponent, without traversing such allegation and without confessing and avoiding it, may state the specialfacts constituting the estoppel, and plead that by reason of such estoppel, the opponent ought not to be permitted to set up the matter relied on in his pleading. Poe Pl., sec. 696.

Thus in this case the plaintiff has in his narr. based his action on a sale of goods to the defendant, and the latter relies as a defense on the adjudication in the suit brought by the plaintiff against the defendant's principal for the same goods now sued for. This, according to the section of Poe Pl. just cited, should be specially pleaded. In addition to this the adjudication pleaded is an estoppel in record. But apart from this view, it seems to us that the special plea here demurred to was entirely proper, for the reason that even admitting that the facts it sets up as a defense may have been given in evidence under the general issue, yet, inasmuch as the plea, in effect,admits the sale of the goods on which the plaintiff relies in his narr., but sets up the judgment recovered against his principal as a defense, it must be held good as a special plea. It confesses and avoids. Keedy v. Long, 71 Md. 388.

It follows the judgment must be affirmed.

Judgment affirmed.

(Decided June 29th, 1903.)