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Wheaton Lumber Co. v. Metz

Decided: June 12, 1962.

WHEATON LUMBER COMPANY, INC.
v.
METZ ET AL.



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

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

Brune

The plaintiff, Wheaton Lumber Co., Inc. (Wheaton) appeals from a judgment in favor of the appellees, Metz and Mood and Best Construction Company, a corporation, who are three of the four defendants in this suit.

The suit was for the price of lumber and other building materials sold by Wheaton in June and July, 1959. It was filed in June, 1960, and as originally filed contained two counts. The first alleged that the defendant, Rothman, had purchased goods from Wheaton and that they were delivered to him and accepted by him in accordance with an itemized statement

attached to the declaration and incorporated by reference in this count. The second count alleged that the defendants Metz and Mood, trading as Best Window Company, individually and through their authorized agent, Rothman, purchased goods from the plaintiff in accordance with the itemized statement attached to the declaration and incorporated by reference in the second count. The itemized statement was made out to "Best Window Co. of Maryland." Attached to the declaration was a motion for summary judgment, a notice to the defendants, the itemized statement above referred to and an affidavit in support of the motion. Rothman was duly summoned, but did not plead or answer, and after default Wheaton obtained an order for judgment against him on November 2, 1960, for the full amount of its claim, plus interest and costs. Metz and Mood were summoned to the August return day, but there apparently was no effort to have judgment entered against them when judgment was obtained against Rothman. On November 7, 1960, Metz and Mood filed the general issue pleas and a plea denying Rothman's agency for them and any ratification of his act.

Thereafter Wheaton took the depositions of Metz and Mood in February, 1961, and of Rothman in April, 1961. In May, 1961, Wheaton sought and obtained leave to file an amended declaration joining Best Construction Company, a corporation, as a defendant. This application was based upon statements in the Metz and Mood depositions to the effect that the business of Best Window Company had been transferred to Best Construction Company during the time when the bills on which the suit was brought (as shown by the itemized statement filed) had been incurred. The amended declaration repeated counts 1 and 2 of the original declaration and added a third, similar to the second, but alleging that the purchases had been made by Best Construction Company through its duly authorized agents, Metz, Mood and Rothman. This corporation (which was summoned in May) filed the general issue pleas on November 15, 1961. The case was set for trial on November 16, 1961, and witnesses were summoned for that date.

On the day of trial the defendants-appellees filed a motion for summary judgment which was then served on the plaintiff's

counsel. The motion was based "on the ground that the pleadings and record of judgment against Harold Rothman in this case show that there is no genuine dispute as to any material fact and that [these] Defendants * * * are entitled to judgment as a matter of law." The appellant's brief informs us that protests were made against this "11th hour move" and the plaintiff's counsel adverted frequently to his "lack of opportunity to prepare for the hearing or research adequately the points involved," but the trial judge refused additional time, allowed counsel for the plaintiff a few minutes to read the cases cited by the defendants' attorney, and granted the motion. Maryland Rule 610 c. 2 (1958 Ed., unchanged in 1961 Ed. effective January 1, 1962) provides for hearing upon not less than ten days' notice. It appears that this requirement was not waived and it is evident that it was not complied with. Cf. Frush v. Brooks, 204 Md. 315, 322, 104 A.2d 624.

We cannot approve this disregard of the ten days' notice requirement of the Rule, but in view of the appellant's concession in this Court that a reversal on this ground alone would be futile if the appellant could not succeed in any event, we shall not base our decision on that ground. We may, however, observe that the result might well have been the opposite of that reached in the trial court if the plaintiff had been allowed the time and opportunity to prepare for argument of the motion and so to point out that the rule of law urged by the appellee and adopted by the trial court would not be applicable to the facts as indicated by the pleadings and inferences which might be deducible therefrom. Cf. White v. Friel, 210 Md. 274, 285, 123 A.2d 303. Here, as there, the facts themselves are uncertain, and a summary judgment was therefore not appropriate. As to the effect of failure to give the prescribed notice, compare generally, Frush v. Brooks, supra; H. J. Heinz Co. v. Beech-Nut Life Savers, Inc., 181 F. Supp. 452 (S.D. N.Y. 1960) with Sequoia Union High School Dist. v. United States, 245 F. 2d 227 (9th Cir. 1957); New and Used Auto Sales, Inc. v. Hansen, 245 F. 2d 951 (9th Cir. 1957); Bowdidge v. Lehman, 252 F. 2d 366, 368-69 (6th Cir. 1958).

The decision of the trial court appears to ...


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