Seff v. Brotman , 108 Md. 278 ( 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.

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,71 Md. 458, in which case the construction of this Act was under consideration, the Court, speaking through CHIEF JUSTICE ALVEY, said: "The obvious purpose of the Act is not only to furnish a short and expeditious method of recovery in the class of actions mentioned, but, by requiring disclosure under oath, as to the real amount or matter in dispute or actual contest between the parties, to avoid unnecessary trouble and expense in the trial. And while the construction of the statute should be such as to afford to every defendant a full and fair opportunity to make all defenses to the action against him, no such restrictive construction as against the rights of the plaintiff should be adopted as would, in any event, defeat or frustrate the beneficial objects contemplated by the Legislature. By the terms of the section quoted, the plaintiff has a right, at any time after the expiration of the fifteen days from the return day, to apply for and obtain judgment, as by default, unless there be a plea by the defendant showing a good defense, and verified in the manner described by the statute." In 2 Greenleafon Evidence it is said that "almost all the defenses to theaction of assumpsit, in the United States, and, until a late period in England, have been made under the general issue. This plea, on strict principle, operates only as a denial in fact of the express promise or contract, where one is alleged, or, of the matters of fact from which the contract or promise alleged may be implied by law. But by an early relaxation of the principle, the defendant, in actions on express contracts, was admitted, under the general issue, to the same latitude of defense, which was open to him in actions upon the common counts, and was permitted to adduce evidence, showing that on any ground common to both kinds of assumpsit, he was under no legal liability to the plaintiff for that cause, at the time of pleading. The practice in the English Courts, by recent rules, has been brought back to its original strictness and consistency with principle. In the United States, it remains, for the most part, in its former relaxed state; and accordingly, where it had not been otherwise regulated by statute, the defendant, under this issue, may give in evidence any matters, showing that the plaintiff never had any cause of action; such as, the non-joinder of another promisee; the defendant's infancy; lunacy; drunkenness, or other mental incapacity; coverture at the time of contracting; duress; want of consideration; illegality; release or parol discharge or payment before breach; material alteration of the contract; that the plaintiff was an alien enemy at the time of contracting, or that the contract was void by statute, or by the policy of the law; non-performance of condition precedent by the plaintiff; or, that performance on his own part was prevented by the plaintiff, or by law, or, in certain cases, by the act of God; or any like manner of defense." The defenses allowable under the general issue plea at common law, in the absence of statutory changes, are still open to the defendant, except the defense of arbitrament and award, and possibly the defense of alien enemy. 1Poe on Pleading, sec. 607-609; Yingling v. Kohlhass,18 Md. 148; Herick et al. v. Swomley, 56 Md. 439.

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 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, 31 Md. 199.

Judgment reversed, with costs, and case remanded.