Baltimore Federal Savings & Loan Ass'n v. Gordon

321 A.2d 157, 272 Md. 52, 1974 Md. LEXIS 763
CourtCourt of Appeals of Maryland
DecidedJune 21, 1974
DocketNo. 282
StatusPublished
Cited by3 cases

This text of 321 A.2d 157 (Baltimore Federal Savings & Loan Ass'n v. Gordon) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baltimore Federal Savings & Loan Ass'n v. Gordon, 321 A.2d 157, 272 Md. 52, 1974 Md. LEXIS 763 (Md. 1974).

Opinion

Levine, J.,

delivered the opinion of the Court.

This case commenced with a confessed judgment upon a promissory note entered in favor of appellant, claiming to be [53]*53a holder in due course, against appellees, the purported makers. When appellees countered with a motion to vacate the judgment and a special plea denying the execution of the note — subsequently conceded by appellant to have been forged — appellant amended its declaration by adding these common counts: “For money payable by the defendants [appellees] to the plaintiff [appellant] for money lent by the plaintiff to the defendants,” and “for money paid by the plaintiff for the defendants at their request.”

The confessed judgment in the sum of $4,683.36, with interest, costs and an attorney’s fee of $702.45, having been vacated because of the forgery, the case came on for trial before Judge Harry A. Cole, sitting without a jury in The Superior Court of Baltimore City. At the conclusion of the trial — after allowing a substantial sum under appellees’ principal defense of recoupment, coupled with a credit for payments made by them — the court entered judgment for appellant in the sum of $310.97. From that action, this appeal is taken. We affirm.

The source of the dispute between these parties was a “proposal” [the contract] by Munson Fence Company, Inc. (Munson) of Laurel to perform certain “home-improvement” work on the Gordon residence located in the same community. The principal work to be performed under the contract was an application of aluminum siding. The contract, which was accepted by appellees, provided that “all work [was] to be completed in a workmanlike manner according to standard practices.”

At or about the time the proposal was accepted, appellees also signed a credit application for a “property improvement loan” which specified $4400 — the amount to be paid Munson under the contract — as the “net amount of credit required.” The credit application consisted of a printed form designed to be completed with the usual information that is required in such cases. It also provided, in printed language, that “if [the] credit application is approved, and if the loan is made, [Munson might sell the] obligation to Baltimore Federal Savings and Loan Association.”

On April 15, 1969, appellant, having received the credit [54]*54application together with the contract and the forged note, delivered its check in the sum of $4400 to Munson, to whom it had been made payable. By this time, the work had been ostensibly completed. On the following day, appellant forwarded a payment book and questionnaire to appellees. The latter was completed by them and returned to appellant with these pertinent comments:

“1. Are you of the opinion that the work was incomplete or unsatisfactory?
“Yes. Both incomplete and unsatisfactory. Of course Munson keeps promising to finish it but that’s all he’s done is promise.. . . The work done on our home cost enough to have allowed the contractor to do a good job. They did not. It is a horrible mess and everytime we talk to Munson to try to get them to fix it they agree it is a mess but they just never get around to fixing it.. . .”

A witness produced by appellant testified that the latter paid the $4400 to Munson on the strength of the note, which was in the original principal sum of $6,755.28, without confirming that. the work had been done. After making several payments, appellees refused to pay the balance. As a ■consequence of appellees’ complaints concerning Munson’s workmanship, the manager of appellant’s home improvement loan department visited the Gordon residence on July 16, 1969, and on the following day wrote to Munson that “these people [appellees] certainly have every right to complain, the aluminum siding was placed on this property with no thought of good workmanship.” He then proceeded to enumerate nine defects which he had observed. For some time thereafter, according to appellant’s witness, efforts were made “to get [Munson] to do the work to the satisfaction of the customer.”

That the work performed by Munson was not “completed in a workmanlike manner,” as specified in the contract, was confirmed by two witnesses: a representative of the Maryland Home Improvement Commission and an expert in aluminum siding. The latter testified — over appellant’s [55]*55objection, but without contradiction — that the work performed by Munson could not be repaired and that “the only way the job can be properly done is to remove the present siding, gutters, downspouts, soffit facia, and replace completely.” He also testified what this would cost, and stated that none of the work or materials furnished by Munson was salvageable.

At the conclusion of the case, Judge Cole upheld appellant’s theory of recovery under the common counts by finding that the $4400 “. . . was paid by the plaintiff for the benefit of the defendants ... .” In awarding appellant a judgment of $310.97, he deducted from the $4400, the total sum of $4,089.03 by way of recoupment in favor of appellees. He arrived at this sum by adding the total payments made by appellees, $562.94, to the cost of correcting Munson’s work, $3,526.09. Appellant attacks this decision on two grounds:

1. There having been no special plea to the common counts filed by appellees, the defense of recoupment should not have been allowed because it arose out of an independent transaction.
2. The trial court applied an incorrect measure of damages in upholding appellees’ claim of defective performance.

(1)

As we have intimated, the contention that appellees should not have been allowed to recoup their damages from appellant is bottomed on the premise “.. . that there were two separate and distinct transactions in the case at bar. One transaction was between [appellees] and Munson for the work to be performed per the ‘Proposal’; the other being between [appellees] and [appellant] for the loan of money to finance the work to be performed.”

We deem it important to stress that appellant’s attack is narrowly confined. It does not question — and, therefore, we do not decide — whether appellees ca.n assert defective performance by Munson, even if specially pleaded, as a [56]*56defense against appellant’s suit for the money which, in effect, it had loaned to appellees by paying Munson. Nor does this issue appear to have surfaced in the trial court. We can only conclude, therefore, that even appellant regards itself as standing in the shoes of Munson with regard to performance under the contract. In view of this concession, the narrow question posited by appellant is a simple procedural one, whether appellees should not have been precluded from asserting their defense under the general issue plea. The rule controlling the issue here is set forth in 1 Poe, Pleading and Practice, § 615 at 643 (5th ed. 1925):

“When the abatement claimed by the defendant on the amount of the plaintiff’s demand grows out of and forms part of the contract in which the claim of the plaintiff originated, the plea of set-off is not necessary, but the defense is open to the defendant under the general issue. Thus, in an action for work and labor, under the plea of never indebted or never promised, the defendant may show that the work was not done, or without a plea of set-off, that the work was improperly done, and its real value.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
321 A.2d 157, 272 Md. 52, 1974 Md. LEXIS 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baltimore-federal-savings-loan-assn-v-gordon-md-1974.