Karthaus v. Owings

2 G. & J. 430

• Court: Court of Appeals of Maryland
• Decided: June 15, 1830
• Status: Published

Opinion

Stephen, J.

delivered the opinion of the Court.

This suit was instituted on an appeal bond, on an appeal from a judgment of Baltimore County Court, rendered in favor of the appellee, against the appellant. In the course of the argument various questions were raised, and pressed with considerable zeal and energy; some of which are not free from difficulty: but one of the points on which the counsel of the appellant seemed mainly to rely, has already been solemnly adjudicated by this Court, and ought not now to receive a different decision, unless that adjudication was manifestly founded upon untenable and erroneous principles. To this action the defendant pleaded. First, the plea of performance generally. And here the Judge referred to the pleadings — Bills of exceptions and judgment of the County Court, as before set out, and then proceeded,— Was the judgment of the Court below correct in overruling the defendant’s demurrer to the replication to the first plea? We think it was. It is not necessary to decide whether the plea of general performance was properly pleaded in the present case, or whether, if it was not, advantage could be taken of it by a general demurrer, or whether its ambiguity, with reference to the stipulations contained in the condition of the bond, was cured by the breach assigned in the plaintiff’s replication; because it has been adjudged by this Court in Karthaus vs. Owings 6 Harr. and Johns. 134, that such breach was properly assigned, and the defendant’s demurrer admitting the facts therein stated to be true, the plaintiff of course was entitled to judgment, according to the established principles of pleading. Independently of the weight justly duo to a former decision of this Court, we think the breach was properly assigned by a negative averment that he had not, in the language of the condition of the bond, “ prosecuted his suit with effect.” In assigning breaches the general rule is, that they may be assigned, by negativing the words of the covenant. The exception to this rule is, that when such general assignment does not necessarily amount to a breach; the breach must be specially assigned. 1 Esp. N. P. 158. 2 Mass. T. Rep. 433, 1 Wheat. Selwyn, 416 are to the same effect. The covenant of seisin and of right to convey come within the rule. The covenants against incumbrances, and for quiet enjoyment, come within the exception, for the defendant does not covenant against all interruptions of the plaintiff’s possession, nor against all possible incumbrances. To these covenants, the breaches should be specially assigned, shewing the nature of the incumbrance, and interruption complained of. The covenant of warranty also comes within the exception: for the defendant is not bound, by his general warranty, to warrant against all claims and ousters, and the plaintiff must assign a breach, by shewing an ouster by an elder or paramount title. “It is not necessary to state matter which would come more properly from the other side.” The meaning of this rule is, that it is not necessary to anticipate the answer of the adversary : which according to Hale, C. J. is “ like leaping before one comes to the stile.” It is sufficient that each pleading should in itself contain a good prima facie case, without reference to possible objections not yet urged, Step, on Plea. 354. As strongly and strikingly illustrative of the principle there laid down, he refers to a ease decided in I Term. Hep. 638, where there was a covenant in a charier party “ that no claim should be admitted, or-allowance made for short tonnage, unless such short tonnage were found and made to appear on the ship’s arrival on a survey to be taken by four shipwrights, to be indifferently chosen by both partiesand in an action of covenant brought to recover for short tonnage, the plaintiff had a verdict; the defendant moved in arrest of judgment, that it had not been averred in the declaration, that a survey was taken and short tonnage made to appear. But the Court held that if such survey had not been taken, that was matter of defence which ought to have been shown by the defendants; and refused to arrest the judgment; and Ashhurst, Justice, in delivering the opinion of the Court, lays down the following principle: “that where a right of action is once vested, any circumstance, the omission of which goes to defeat it, whether called by the name of a proviso by the way of defeasance, or a condition subsequent, must in its nature be a matter of defence, and ought to be shewn by the defendants: and all that is necessary prima facie to found an action of covenant upon, is, that the covenant should be broken.” In the case of Ferguson vs. Cappeav, 6 Harr. and Johns. 401, the same rule is sanctioned and established. This Court there say, “ It is a settled rule in pleading, that in an action founded upon a contract, if there be in the contract a proviso or condition, which operates only in defeasance of it,, or merely respects the liquidation of damages, after a right to them has arisen by a breach of the contract, it is not necessary to be stated in the declaration, but should come from the other side; but that if there be a condition precedent, or a proviso or other matter, which qualified the contract, or goes in discharge of the liability of the defendant, it must be stated.” Upon failing to prosecute his suit with effect or to a successful termination, or in other words upon the affirmation of the judgment of the Court below by the Court of Appeals, the event occurred, by which the condition of his bond became broken, and he could only be discharged from his liability, by performing the alternative stipulation, in satislying the judgment pronounced hy the Court of Appeals, this being matter which operated in defeasance of his responsibility, ought to have been pleaded by the appellant; for the sound legal construction of the condition of the appeal bond, was an undertaking to reverse the decision of the County Court, or satisfy the judgment of the Court of Appeals; and as the Court decided in 1 Term. Rep. 638, above referred to, that a right of action vested in the plaintiff from the defendants not having fully laden the ship before she left India, which they were bound by the covenant to do, and that all that is necessary prima facie to found an action of covenant upon, is that the covenant should be broken (and the principle is here equally operative,) so here we consider that a right of action vested in the appellee, when the appellant failed to prosecute his suit with effect, which by the condition of his bond he explicitly bound himself to do; from which right of action if he wished to discharge himself, it was his duty to have pleaded by way of defence that he had satisfied the judgment rendered by the Court of Appeals. We are therefore of opinion that the breach Was well assigned by the averment that the appellant “did not prosecute his suit with effect,” to the damage of the plaintiff as there stated, and that the replication, concluding as it did, was right; for where a plea contains matter of fact as well as matter of record, it should not conclude with a verification by the record, but with a verification to the country. 2 Saun. Plea, and Evid. 315. 3 Mod. 79, there referred to — Upon the appellant’s demurrer to the replications of the appellee, to the appellant’s jftrst and second pleas, we therefore think the judgment of the Court below was correct.

As to the third, fourth, fifth and sixth pleas of the appellant, to which the appellee demurred; and the appellant joined in demurrer. The principles of sound logic constituting the basis of the science of pleading, a plea in bar must be a substantial and conclusive answer to the action, Step, on Plea. 71. This Court are of opinion that the third plea of the appellant is defective, because it should shew a compliance.. with the judgment of the Court of Appeals • every word of the plea may be true and yet the condition of the bond be broken ; the plea that he had paid the debt, damages and costs adjudged by the County Court, and also all costs and damages that were awarded by the Court of Appeals, is not a sufficient answer to the judgment of the Court of Appeals, which is for a return of property and costs. He should have set out the judgment of the appellate Court, and then pleaded satisfaction of it, in order to discharge himself. That the appeal bond covers a case of replevin is no longer an open question, and if it was, the defence of the appellant must present a conclusive answer to the claim of the appellee, which is for a return of the property and costs.

The fourth plea we consider is .likewise defective. The satisfaction of a judgment recovered, in a suit upon the replevin bond against the surety, of the appellant, would be no bar to a suit upon the appeal bond, because the judgment in the County Court, is not eo-extensive with the judgment in the Court of Appeals; the costs in the Court of Appeals at all events are not covered by it. And the plea moreover does not state that the judgment of the County Court was satisfied before this suit was brought, which was an essential averment to constitute a legal and valid plea in bar.

The fifth plea is equally, if not more defective than the first; certainly the technical satisfaction there pleaded would not be a' bar to this suit, if the satisfaction pleaded in the former plea would not; besides an entry of the execution “not called by consent,” is perfectly consistent with the facts contained in the plea, which, as we have seen, must be a substantive and conclusive answer to the action.

The sixth plea is still more feeble, ineffective, and unavailing than the others, with which it stands associated. It is, that judgment was obtained against him in a suit upon the replevin bond, from which he appealed to the Court of Appeals; that his appeal was dismissed, and be was adjudged to pay costs, which he did pay accordingly. He admits in express terms that he did not prosecute his suit with effect, and the payment of costs, clearly was no bar to this suit.

In the execution of a writ of inquiry at bar for the purpose of assessing the damages of the appellee, (the judgment of the County Court on the demurrers being against the appellant) five exceptions were taken by the appellant. As to the first exception, wo think the evidence admitted by the Court below was properly received, as it was adduced to prove the value of the goods replevied. The decision of this Court in 6 Harr, and Johns. 134, clearly settles this question. That case shews, that you may recover the value of the property upon the affirmance of the judgment, by pleading that the suit was not prosecuted witli effect. The opinion of the Court below, expressed in the second exception, was not erroneous, because the records were proper evidence to identify the goods replevied. The appraisers, in the case of rent, are authorised by a statute passed in the reign of George 2d. G Bacon’s A hr. CO, and have in practice been resorted to in all cases of replevin in this State, for the purpose of ascertaining the value of the goods replevied, in order as directed by that statute in the case of rent, to ascertain the sum in which the replevin bond is to bo taken. This Court are therefore of opinion, that the appraisement was at least prima facie evidence of the value of the goods, at the time of the replevin, and was legally admissible in evidence for the establishment of that fact. The opinion of the Court we also think correct as stated in the third exception, in which they refused to exercise a controlling power and jurisdiction over the jury upon the subject of interest, to whom, in such a ease, the power of granting it exclusively belongs, according to the decision of tisis Court in the case of Newport, and Douglass, 7 Harr. and Johns. 453. We do not think that the Court erred in the opinion expressed in the fourth exception, because the statements and evidence contained, in the exceptions in the replevin suit were clearly not admissible, or legal evidence, to influence the jury in the allowance of interest. If the witnesses were living, they ought to have been produced. Bowie vs. O’Neal, 5 Harr. and Johns. 231. Even proof of their testimony on the first trial, in case of their deaths, is only admissible upon the ground of necessity, no evidence that they were dead was offered in this case.

We are also of opinion that the Court were clearly right in the opinion given in the fifth exception. The discharge of the defendant by injunction, without the assent of the creditor, was clearly no satisfaction of his claim; we are therefore of opinion that the judgment of the Court below ought to be affirmed.

judgment affirmed.