Mitchell v. McCleary

Miller, J., delivered the opinion of the Court. The only question presented by this appeal is, was the Court below right in overruling a general demurrer to the declaration? That question must be decided in view of the fact that all that is now required for a declaration to contain, is a plain statement of the facts necessary to constitute a ground of action, and that no general demurrer will be allowed for a mere informal statement of the cause of action if that statement be sufficient in substance. Code, Art. 75, secs. 3, 7. The suit is upon a guaranty given by the defendant to the plaintiff that one Boettner shall pay the rent and comply with all the other obligations on his part mentioned in a lease of certain property leased by the plaintiff to him. From its terms this guaranty appears to have been written upon the lease itself. The case has been submitted on brief notes by the appellant’s counsel, and we shall with equal brevity dispose of the few objections they make to the declaration. 1st. They say the guaranty set forth in the declaration is upon its face an agreement to guarantee rather than a guaranty itself. We do not so read it. The defendant not only agrees to guarantee but in express terms actually guarantees that Boettner will pay the rent and comply with all his obligations in the lease. 2nd. It is next objected that the declaration alleges that the delivery of the guaranty was prior to the making of the lease, and the transaction was not complete until the guaranty was .accepted and notice given to the defendant of its acceptance. One of the averments in this respect is that “the defendant did, on the day of the execution of said lease and as part thereof, and prior to, and as a condition precedent to the making of said lease and to the delivery of said property, guarantee in writing unto the said plaintiff in manner and form as follows:” and then the guarantee is set out in haec verba.' This is quite sufficient, but it is elsewhere repeatedly averred in the [377] declaration that the guaranty was a part and parcel of the consideration for the lease, that the lease was made on the faith of it, and that the premises were delivered and Boettner took possession of them under and subject to said lease and guaranty. Besides, this was an absolute guaranty and not a mere overture or offer to guarantee, and it is quite clear upon all the authorities, that in a case like the present, no notice of its acceptance was required to make the guarantor liable thereon. Wilder vs. Savage, 1 Story’s C. C. Rep., 32; Paige vs. Parker, 8 Gray, 211; Caton vs. Shaw, et al., 2 H. & G., 22; Nabb vs. Koontz, 17 Md., 288. (Decided 3d June, 1875.) 3rd. The guaranty concludes, “in witness whereof we have hereunto sot our hands and affixed our seals,” and is in tact signed and sealed by the defendant alone, and this is relied on as an evident imperfection in the instrument. But it was in fact signed and sealed by the defendant, and these mere inaccuracies of expression make it none the less Ms obligation, and none the less binding on him. The whole tenor of the instrument and the averments of the declaration show it was intended to be signed by him alone, and to be his guaranty. 4th. It is conceded that the fact that there is no direct consideration set out in the guaranty is covered by the decision in Nabb vs. Koontz, 17 Md., 283. 5th. The last objection is that the declaration 'contains two counts, in each of which the claim of $2000 damages is made, and then the declaration concludes with a claim for $5000 damages. But this, if anything, is a mere informality, which is fully met by section 7, Art. 75 of the Code. Judgment affirmed.