Waggaman v. Nutt

Citations

• 88 Md. 265
• 41 A. 154
• 1898 Md. LEXIS 196

Syllabus

<p>Non-Joinder of Defendant in Action ex contractu — Plea in Abatement— Construction of Contract— Waiver of Non-Performance of Part of Contract.</p> <p>When only one of two parties defendant to a contract is sued, the non-joinder must be taken advantage of by plea in abatement, unless the .declaration discloses upon its face that the contract was joint. Such non-joinder cannot be set up after a plea in bar is filed.</p> <p>A contract by which plaintiff agreed to purchase shares of stock in a corporation and pool the same with defendant for a number, of years, and defendant agreed that if plaintiff became dissatisfied with defendant’s management, he should be entitled to demand a return of the money advanced by him after a certain notice, construed and held to authorize plaintiff to hold defendant personally liable for such amount after giving the prescribed notice.</p> <p>When a contract by its terms requires the plaintiff to do certain things, and he fails to do one of them, but such nonperformance is acquiesced in by the defendant, who thereafter promised to pay the sum due to the plaintiff, then such' 'non-performance is waived, and plaintiff is entitled to maintain an action on the contract.</p>