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Mason v. Central Oil Burner Co.

Decided: January 23, 1962.

MASON, ETC.
v.
CENTRAL OIL BURNER COMPANY, INC.



Appeal from the Circuit Court for Montgomery County; Pugh, J.

Brune, C. J., and Henderson, Hammond, Prescott and Marbury, JJ. Marbury, J., delivered the opinion of the Court.

Marbury

The appeal in this case involves two suits by the appellee, Central Oil Burner Company, Inc., upon a single obligation arising out of a contract dated October 3, 1955, written upon a printed form of appellee in which some of the blank spaces were typed. The contract as written was between Central Oil Burner Company, Inc., seller, and Leroy W. Mason Company, purchaser, but was signed only by Leroy W. Mason. It was for the sale and purchase of certain oil burner equipment for the total sum of $2270.00 upon which payment in the sum of $540.00 was credited, leaving a balance of $1730.00.

Default having occurred under the terms of the contract, suit was filed in the Circuit Court for Montgomery County, on October 31, 1956, under Maryland Rule 610, Summary Judgment, against Leroy W. Mason t/a Leroy W. Mason Company, in Law No. 5941, the instant case, to recover $1730.00, with interest from February 29, 1956, and costs, including 15% attorney's fees. The contract was attached to the declaration. The papers in this suit were served upon Leroy W. Mason on November 3, 1956, by the sheriff. Before

any further proceedings were had in Law No. 5941 the appellee, on December 11, 1956, filed a second suit in the same court against Leroy W. Mason Company, a corporation, declaring upon the same contract dated October 3, 1955, to recover the same amounts, and attached to the declaration an invoice or ticket showing the balance due to be $1730. This second suit was supported by an affidavit for attachment before judgment and motion and notice under the summary judgment rule, and was docketed as Law No. 6058. The papers in this case were served upon Leroy W. Mason Company, w/s/o (evidently meaning with service on) Leroy W. Mason, President, on January 4, 1957.

Appellee's attorney by letter dated January 3, 1957, to the clerk of the circuit court under the caption Central Oil Burner Company v. Leroy W. Mason t/a Leroy W. Mason Company, requested the court to enter summary judgment for the sum of $2088.90, which was adjusted in handwriting to $2108.87. This letter was filed March 6, 1957, and resulted in the entry of summary judgment in favor of the plaintiff, appellee here, against Leroy W. Mason, for $2108.87, with interest and costs, by an order signed by Judge Reeves, since deceased, in Law No. 5941. In a second letter dated February 13, 1957, from appellee's attorney to the clerk of the court under the caption Central Oil Burner Company, Inc. v. Leroy W. Mason Company, request was made for entry of a summary judgment in the amount of $2003.92. This letter was filed in case No. 6058 on March 6, 1957, and resulted in an order also signed by Judge Reeves entering summary judgment in that case for the plaintiff against Leroy W. Mason Company, in the sum of $2003.92, with interest and costs. The difference in the amount of the judgment in cases No. 5941 and 6058 appears to be due to an error in calculation of interest. The principal in each case, upon which interest was calculated, being $1730.

Subsequent to the entry of the two judgments the corporation Leroy W. Mason Company, Inc. was adjudicated a bankrupt. The appellee filed its claim based upon the judgment in Law No. 6058 against the corporation in the bankruptcy proceedings and ultimately received by way of a dividend a pro rata share of the assets of the corporation.

The record before us discloses no further activity on the part of the appellee to collect any indebtedness due it until October 4, 1960, when the appellant was served with process in a suit in Virginia based upon the judgment obtained against him individually in Law No. 5941. This was followed on November 2, 1960, by a petition by the appellant to vacate the judgment in Law No. 5941, asserting as grounds therefor the two judgments obtained upon the identical obligation against the appellant individually and the corporation, his denial of having been served with process in Law No. 5941, and that the appellee's claim had been satisfied through the allowance of its claim upon the judgment against the corporation in the bankruptcy proceedings.

The trial court, Pugh, J., by opinion and order dated March 28, 1961, denied the petition to vacate the judgment, holding that such relief was precluded by Maryland Rule 625, Revisory Power of Court over Final Judgment, because of the delay of more than four years in seeking to vacate the judgment, and that the petition had not set forth a meritorious and substantial defense.

The appellant thereupon filed a petition to reconsider the order denying the petition to vacate the judgment and supported this petition with an affidavit alleging by way of supplementation that (1) at all times involved herein he was president of the corporation known as Leroy W. Mason, Company, Inc., and that the claim sued on herein was solely an obligation of said corporation and was not an obligation of the affiant individually, nor did affiant ever make himself personally liable for the payment of said obligation, all of which was well known and understood by the officers and agents of the plaintiff (appellee herein), (2) that at no time was he aware that any process served on him was in connection with any claim being asserted against him individually, and (3) that from the caption on said process and papers served on him, and based on the fact that all dealings had been between the ...


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