Brooke v. Quynn

Le Grand, C. J., delivered the opinion of this court. This case was before, this court-once before and is reported-in 10 Maryland, 197. It is not materially altered in its facts-since, and we therefore abstain from the discussion of the questions then raised and pronounced upon. The first exception of the defendant relates to the refusal of the circuit court to admit certain testimony.- The action is one of indebitatus assumpsit, to recover for services alleged aud claimed to have been rendered by the appellee to Carroll, in his lifetime. After the plaintiff had offered evidence of services and of their value, the defendant “offered to prove, by competent witness, that during, the time of the rendition of such-services, the said Carroll had supported--and maintained the said plaintiff and-his family, with a view to a reduction of the" damages, and under the issue joined on the count for a quantummeruit.” The court was of opinion, that the evidence was-in-admissible, under the pleadings in the cause, and refused to-permit it to go to the jury. There is no technical count of quantum meruit in the declaration, nor is there any notice or plea of set-off in the record. The appellee contends, that in the absence of a plea of set-off,, under this declaration, the testimony was inadmissible, but concedes it would be proper were there, in the declaration, a-count for a quantum meruit. On the other side, it is insisted,that at the present day, and long before the bringing of this action, the count of indebitatus assumpsit would enable the’ plaintiff as fully, to recover as though the declaration., in addi — 387 — ion io it, contained either the quantum meruit or quantum, mlebant counts, or both of them, and, as a consequence, that whatever could be given in evidence, by way of defence, under either or both of them, could be given in evidence under the issue joined on the imlehiialus assumpsit. To this latter view we fully assent. In England, since the adoption of the now rules of pleading, in the reign of William the 4fh, the prescribed form of an indebitatus count “may be considered as virtually abolishing the quantum, meruit and the quantum valebant counts.” 1 Chitty’s Pleadings, 342. But, independently of, and before the adoption of, the rules referred to, the better opinion was, that these counts were unnecessary. Chitty, 1 Vol., 342, tells us, that “although Sir William Blackstoue mentions the quantum meruit and valebant ns useful, and as then to have been supposed necessary precautions to avoid the risk of the plaintiff’s not being able to prove an agreement to paya fixed price, the opinion of the profession has long been, that such quantum, meruit and quantum valebant counts are wholly unnecessary, and that under an indebitatus count in assumpsit or debt the plaintiff may recover, although there he no evidence of a fixed price.” Mr. Evans, in his edition of Harris’ Entries, 1 Vol., 106, speaking of the quantum meruit and valebant counts, says: “it was formerly the practice to insert, in every declaration, the two last mentioned counts, and they are still usual in England. They are, however, unnecessary, and in Maryland have fallen entirely into disuse.” He then proceeds to quote the following note of Sergeant Williams, 2 Saund., 122, a note, 2: “It was formerly holdon, that upon a count for goods sold and delivered, the plaintiff was bound to prove more than one particular thing sold, (though lie may now recover for one thing only;) and also to prove a price agreed upon, otherwise the plaintiff would fail. So upon a count for work and labor, use and occupation, and other counts of the like nature, the plaintiff was bourn! to prove a price or sum of money agreed upon, and, therefore, where tire plaintiff could only prove the delivery of the goods, or the doing of the work, or the occu. nation of the estate by the defendant, and the like, without — 388 — any price or sum agreed upon to be paid to the plaintiff, he was obliged to declare upon a quantum valebant or a quantum meruit. But this strictness is now relaxed, and the present practice seems to be, that the plaintiff may, upon a count for goods sold and delivered, work and labor, use and occupation, and the like, recover what he shall prove to be due him, notwithstanding there was not any price or sum of money agreed upon, though, on the other hand, where the contract is for a certain price.-qr.sum of money, it seems to be understood, that the plaihíiff canriot recover upon a count ón a quantum valebant or'- quantum meruit. '¿And indeed these last mentioned counts;seem] noio.to be of !:little or no use, so that, it seems, it is not'-often necessary to-insert them in the declaration. ” These citations, from Writers of the highest authority, áre not ma’de.for the purpose of showing that, in a case like the present, the ihedlpóiation of quantum meruit and quantum valebant counts, into the declaration, would be either fatal or erroneous, but simply unnecessary; that now, under the indebitatus count, a plaintiff may recover just as he could formerly, and can do now, under a quantum, meruit count, when no price has been agreed upon for the services rendered, and to deduce from the circumstance, the conclusion, that the declaration in this case is sufficiently comprehensive to maintain the plaintiff’s claim and to authorize the defendant to interpose, under the joinder of issue in this case, whatever evidence he could have adduced under a joinder on a quantum meruit count.. There is nothing in ail this, in the slightest degree, in conflict with anything which has heretofore been said by this court, in any case decided by it. The case of Ridgeley vs. Crandall & Wife, 4 Md Rep., 441, merely decided what, on principle, ought never to have been questioned seriously, namely, that a stipulated price, due under a special contract, not under seal, when the contract has been fully executed, can be recovered under the indebitatus count; it did not, however, decide, that under such a count, where no price has been agreed upon, and where the service is complete, that, there can be no recovery; nor was any such doctrine asserted in Ellicott vs. Peterson’s Exc’rs, 4 Md. Rep., 491. In the — 389 — latter case it was recognized as good law, that if the services be rendered and the work accepted, the party doing the work could recover ou a quantum meruit. This may be, aod is, true, and yet it may be equally so, that, under like circumstances, a recovery may be had under an indebitatus count, and this is the opinion of the eminent pleaders to which we have referred, as well as that of many others. The only difficulty which was ever stated to exist, in regard to the matter, was supposed to grow out of a doubt, count covered anything but a being removed, the office of the codmtf^átended itself to the comprehension of those of the counts » valebant. | ' t Holding, then, whatever can be i^co^ejégBnll^tíitíjir or both of these last mentioned counts i^^^ej-eco^p#0df under the indebitatus count, it follows, logically anfFm^fessarily, that whatever may be given in evidence, by way of defence,.under the quantum meruit and valebant counts, can be given also in evidence under the indebitatus count. This brings us to the inquiry, whether the proof contained in the appellant’s first exception could be .given in evidence under a joinder of issue on the quantum meruit count? And this question divides itself into two other inquiries, first, whether the testimony, under any state of the pleadings, would be admissible? second, if so, whether it could be availed of without a notice or a plea of set-off ? In regard to the first inquiry, it is objected that the proof offered is too indefinite, and this indefiniteness is supposed to consist in the fact, that the offer was not accompanied by a declaration of the number of the family of the plaintiff, nor of the value, in money, of the support alleged to have been furnished to them and himself. This objection is not tenable. It is true, that all testimony, to be properly admissible, must be pertinent to the inquiry before the court, and proceed from a competent source. There was no objection as to the source from which the testimony was to bo derived; and if the circumstance, that the testator of the defendant supported the plaintiff and his family, during the time he was performing — 390 — the services for which he now claims compensation, be one which ought to be considered, it is difficult to perceive why the evidence offered should not have been admitted. It is said, that the proffered evidence should have been accompanied with a .proffer of proof tending to show the value .of the support. Now this was unnecessary, because the evidence offered was, per se} pertinent to the issue; and in Marshall vs. Haney, 4 Md. Rep., 510, it was said: “Evidence relative to the issue is admissible, though it be insufficient unless followed and supported by other evidence.” When such evidence has been admitted, if it should not be followed by proof establishing its sufficiency, the opposite party may, when the evidence is closed, obtain from the court an instruction to the jury to disregard the admitted evidence upon the ground of its insufficiency. It can hardly be contended, that a plaintiff, in offering to make out his case for work and labor, will be debarred from showing the performance of the work as a fact, until he shall declare that he means to follow it up with evidence showing the value of the work, and if the plaintiff be not so trammelled, there is no reason or .justice why the defendant should.be. This is not like a case where testimony wholly inadmissible in itself is excluded, unless the parly offering it declares his purpose to follow it up with other testimony making it legal. It is but the offer of the first link in the chain of evidence to make out a fact, and, as such, admissible; subject, in its effect, however, to the other proof to be offered. The rules which have been, from time to time, recognized as governing the order of the admissibility of testimony have been already carried to very great length, and adhered to with, perhaps, a too rigorous strictness, so much so, that it is very far from being clear, that the substantial ends of justice have no't been thereby as frequently defeated as they have been promoted. In regard to a plea of set-off being unnecessary in a case like the one now under consideration, the authorities are explicit; a few of them only need be referred to. A plea of set-off is only necessary, when the abatement in the amount ■ claimed by the plaintiff, does not grow out of and form pari — 391 — of the contract, in which the claim of the plaintiff originated. In the case of Grainger vs. Raybould & another, 9 Car. & Payne, 229, (38 Eng. C. L. Rep., 94,) it was held, that when a plaintiff sues, on a quantum meruit, for work and' labor, the defendant may (without pleading a sct-oif) give in evidence, that he provided the plaintiff’s men, who did the work, with their beer, as it may be, that the plaintiff deserves to'be paid the less, because his men had their beer provided for them by the defendant. That casé, in principle, is identical with ihe present. In the case of Turner vs. Diaper, 2 Manning & Granger, 241, (40 Eng. C. L. Rep., 351,) the principle is fully recognized, that in an action for work and labor, under the plea of nunquam indebitatus, 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; one of the judges remarking, that he was clearly of opinion, that that case was not one of set-off, and that the evidence, offered by the defendant, went to show that he never was indebted' beyond a certain amount. See Coates & Glenn vs. Sangston, Gar., 8 Md. Rep., 121. (Decided May 12th, 1859.) We concur with the court below, in admitting the testimony of the witness, Fielder Bowie. He had no direct interest in the suit, nor in the fund. His interest, if any at all, was entirely too remote and speculative to disqualify him. Melvin vs. Melvin, 6 Md. Rep., 541. We also agree with the Circuit court in its ruling-,’ as set out in the third exception. The mere fact, that the plaintiff was seen in a particular room, where certain papers were kept, could not justify the jury in inferring, that at that time he fraudulently placed his receipt among the papers of Mrs. Carroll, nor would it have been proper for the court, by its instruction, to have taken away from the receipt of the plaintiff its prima facie evidence of payment of the money. Until this evidence was rebutted it was conclusive’ of the' fact of payment. 'We reverse the court on the first exception and affirm it outlie others. Judgment reversed and procedendo aivardecñ-