Laubheimer v. Naill

Citations

• 88 Md. 174
• 40 A. 888
• 1898 Md. LEXIS 180

Syllabus

<p>Practice under the Rule Day Act — Failure to take Judgment for Amount Admitted by Defendant's Affidavit— Renewal of Promissory Note — Bitrden of Proof.</p> <p>Under the Rule Day Act relating to Baltimore City (Act of 1894, chap. 173) when the defendant’s affidavit admits that a part of plaintiff’s claim is due, the plaintiff is entitled to a judgment for that amount, upon motion in writing, but if he does not take judgment and goes, to trial after joining issue</p> <p>• on the pleas, then the whole case is open and it is competent for the defendant to show that his admission of a part of the debt was made under a mistake and that he owes nothing.</p> <p>The endorsement on a note, by the maker, of the words, “ renewed for one year from date ” does not create an indebtedness by the maker if none then existed, nor preclude him from showing that in fact the note had already been paid.</p> <p>Plaintiff sued under the Rule Day Act, filing, as his only cause for action, a promissory note for $200. Defendant’s affidavit admitted that $59 was due and disputed the balance. Plaintiff did not take judgment for $59, but joined issue. At the trial plaintiff claimed under the note and also upon open account, induced, by defendant’s payments, to $59. Defendant denied the existence of the open account and claimed that his payments should have been credited on the note, by which it was overpaid. Held, that defendant’s admission in the affidavit to the plea was not then conclusive upon him and that he is entitled to have the jury instructed that the burden of proof is upon the plaintiff to establish his claim by a pi'eponderance of evidence.</p>