obtained. The cause of action was a note dated July 8, 1914, given for the price of a threshing machine, purchased of the appellant by the appellee, for which he signed an order dated June 4, 1914. The appellee ordered the machine "subject to all conditions of agreement and warranty printed on back of this order and made a part hereof," and agreed that: "Purchaser will receive same on arrival, will pay freight and charges thereon from factory where made, and upon delivery or tender thereof, will pay to your order $...... cash, and execute approved notes payable to your order as follows: $845.00 due Nov. 15, 1914 be settled for by note on delivery." ...... To necessary to determine whether a judgment obtained under that act should be stricken out if there was a misjoinder of counts in the declaration. [2] 2. It was held in Tyrrell v. Hilton, 92 Md. 176, 48 Atl. 55, that a judgment could be validly entered by confession on a note containing a provision, "And we do hereby confess judgment for. the above sum, with interest and costs of suit," even by the clerk of the court, under section 6, art. 26, of the Code, and that it made no difference that the attorneys who assumed to appear for the defendants were without express authority to do so; the defendants having given their The "warranty and agreement" was in part assent to the judgment by their own signaas follows: "International Harvester Company of America (Incorporated) hereby warrants said thresher, attachments and engine to be well made, of good material and durable with proper care, and to do good work if properly operated by competent persons, with sufficient power and the printed rules and directions of the manufacturer intelligently followed. If after three days trial by the purchaser, said property shall fail to fulfill the warranty, written notice thereof shall at once be given to said company at Harvester Building, Chicago, Illinois, and also to the agent through whom the same was purchased, stating wherein it fails to fulfill the warranty, and reasonable time shall be allowed said company to send a competent man to remedy the difficulty, the purchaser rendering necessary and friendly assistance." The note which is under seal was payable on or before the 15th of November, 1914, for $845, with interest, and contained among other provisions: "I hereby confess judgment to be entered by the proper officials at any time after maturity for the amount then due hereunder, with all exemptions hereby expressly waived." On April 6, 1915, a case was docketed in the circuit court for Baltimore county, the appearances of attorneys for the plaintiff and the defendant were entered, a narr., the note, agreement for judgment by confession signed by the attorneys, and an order of court that the judgment be entered in accordance with the agreement were filed. The same day a judgment by confession was entered for $864.43, with interest and costs. There is nothing in the record showing whether the attorney who appeared for the defendant had been authorized by him to do so, but as the defendant swore that he did not know that the note contained authority to confess judgment or that a judgment had been entered, until an execution was issued and his property was levied on (which is not denied), the attorney probably appeared at the instance of the plaintiff by reason of the provision in the note. [1] Preliminary to a consideration of the main question in the case it may be well to dispose of several matters: 1. We do not find that the action was instituted under the Speedy Judgment Act, as suggested by the appellee, but it was a judgment by confession, entered the day the ture to the obligation. The court also said: "We cannot doubt that any judge, having ordered to be entered a judgment under the cir cumstances we have supposed, would refuse to vacate it upon the grounds urged here." As we have seen the entry of this judgment was authorized by an order of a judge, and as it could not be stricken out merely because the only authority for it was contained in the note if the clerk had entered it under section 6 of article 26 a fortiori it could not for that reason be when authorized by the court. [3] 3. It has however, been settled in this state, in addition to what may be implied from what was said in Tyrrell v. Hilton, that a judgment by confession can be stricken out for sufficient reasons, as well as any other judgment. Sunderland v. Braun Packing Co., 119 Md. 125, 86 Atl. 126, Ann. Cas. 1914D, 156. The [4] 4. The mere fact that the appellee did not know that the note contained an authority for a confession of judgment would not of itself be sufficient to justify the court in striking out the judgment. He can read, and in the absence of fraud or something which would furnish a sufficient excuse for not reading the note before signing it, he could not be relieved of the judgment wholly on the ground that he did not know that it contained such a provision. cases of Spitze v. B. & O. R. R. Co., 75 Md. 162, 23 Atl. 307, 32 Am. St. Rep. 378, Smith v. Humphreys, 104 Md. 285, 65 Atl. 57, Paper Bag Co. v. Carr, 116 Md. 541, 82 Atl. 442, and others in this state which might be cited, show that something more than a mere want of knowledge that the note contained such a provision would be required, in order to justify the court in striking out the judgment. [5] 5. This brings us to the important question in the case. There is evidence tending to show a breach of the warranty quoted above by the appellant as to the machine. It is true there is some to the contrary, but if the testimony of the witnesses produced by the defendant is correct, the machine not only did not do good work, but on the contrary did the work in a way that was both appellee's business, as no one would likely employ him the second time to thresh grain if the machine worked as some of the witnesses testified. Moreover, it was conceded by the appellant's agents who delivered the machine that it had been in a wreck and was damaged when it reached the station. Mr. Snavely, the agent who made the sale, testified: by the company; that is satisfactory to you, isn't it?' I read the warranty to him when I taken the order, and it is on the back of the order. It says: "This machine is well made, of good material, guaranteed to do good work for a machine of its kind and class, if properly operated; and he said, 'I guess that is all right,' and he signed the note right on the front end of the car before ever the machine was unloaded from the car, and I turned it over and told Mr. Snavely to sign the note. He said, 'Have I got to sign that?' 'Certainly; you are the local agent; and he did. Mr. Snavely told him to sign the note. Everything would be satisfactory; that he worked or sold for the company for several years, and he never found them to do anything wrong yet." Mr. Snavely testified as to that: "As I told you, the machine came there in bad repair-some pulleys had been robbed of the belts, the leather that goes around the pulleyand the house sent these out and made them all right. But the machine gave trouble. Mr. Neuhauser continually complained to me about the machine, and I would immediately call up the house in Baltimore over the long-distance telephone and tell them, and they would say they would send him a man, and after a while they would send a man, and that is the way the thing dragged along. From time to time Mr. Neuhauser said, 'I can't work this machine, I will have to put it aside.' 'Well,' I said, 'Sam-ed to me that the machine was in bad shape, in my, this company is all right. I have been do ing business with them. I feel sure they will make this machine all right. You go on and use it.' And I would still put it up to the company to assist me to satisfy this customer. It was to my interest to make this machine all right; I had an interest at stake to make it stay.' He also said on cross-examination : "As I stated, some of the pulleys were robbed of their belting. That lining around the pulleys, and the weigher that goes up, extends probably two feet above the main machine, was cracked, and I can't just mention in detail what all was the matter." That witness was called by the appellee, and there is a judgment against him as a guarantor or indorser (the record is not clear which) of the note, but Mr. Johnson, another agent of the company, testified on behalf of the company that: "Mr. Phelps and me got there before Mr. Neuhauser or Mr. Snavely, and we found the machine had been in a wreck or something, the weigher and blower were bent, and also there was cross-sill on top of the thresher broke, and all the leather belting was taken from the boxes, and also the covering, the leather covering on the pulleys, was gone.' Again he said: "Why, it looked to me as if the bagger and weigher had been struck on top by something and bent out, and also split the cross-sill off, the end off where the weigher and bagger were bolted, split the end of that sill out, and also the leather belting was taken, and also the covering on the cylinder." He claimed that the company had corrected the trouble, and had furnished what was lost, etc. But it is conceded that when the appellee saw the machine, he refused to sign the note until he was finally persuaded to do so by Messrs. Johnson and Snavely. The former told him that the company would furnish the lost articles, and that the warranty would protect him. Some of the evidence was to the effect that Mr. Johnson said that signing the note was a mere form, but he testified that he did not know whether he said that or not. He also said that: "The machine came in at Timonium Fairgrounds to be unloaded in very bad condition, about 10 days late behind what they promised it there, and Mr. Neuhauser went over and examined the machine and came back and reportabout it, and I said, 'We will meet you there a wreck. And he said what was he going to do ing to make it all right,' and I met him over to-morrow, and I am sure the company is willthere the next day with Mr. Johnson, and he made up a list, with the understanding that the taken an account of the damage that was done, company would make it all right. So I told Mr. Neuhauser to unload the machine, and after it was unloaded, Mr. Johnson presented the note, said it was customary for him to sign a note at the time the machine was unloaded at the railroad; that they would be responsible. And Neuhauser objected, and putting a great deal of confidence in me, I said, 'You sign that note. I am sure the company is fair, and I want you to feel I am square in the matter, and it will be all right;' and with that understanding Mr. Neuhauser signed the note, and it was a very warm day, and we were two or three hours behind time, and he nor I neither read the note, I didn't really know it was a confessed judgment note, and I put my signature across the back of it because I had been doing business with the International Harvester Company 14 years and nothing like this occurred before. I never signed no notes." Mr. Snavely was then asked: "And it was upon the statement that it would be made all right if he signed that note that he did sign it?" To which he replied: "Sure, that was the understanding when we made the deal with Mr. Neuhauser in the first. and the machine must be satisfactory. I went there and made a deal with Mr. Neuhauser, and then got one of their traveling men to come over to help complete it." [6] The plaintiff contends that as the warranty required the notice to the company, as well as to the agent, shown above, and as the notice was not given to the company at Chicago, the defendant could not rely on the warranty. But the evidence shows that the company sent its men from time to time to fix the machine, and it must be held, under the circumstances, to have waived the notice in writing to the company at Chicago. According to the evidence of the defendant, some of the agents of the company were there in November, when they made certain re "Mr. Neuhauser refused to sign the note until I told him they would be replaced and be sat-pairs and again on January 7th they had anisfactory to him. I said: 'Mr. Neuhauser, you other trial of the machine, when one of the last of March or first of April he was still en- | judgment and giving him an opportunity to deavoring to get the matter settled, and of- have his claim properly presented. Order affirmed, the appellant to pay the fered to pay $100 if the company would take the machine back. Mr. Snavely testified that costs. they went to Mr. Neuhauser's in December and put on a new sill where the wheel had been hit and cracked, but he did not know what they did after that. (78 N. H. 125) GOVERNOR AND COUNCIL v. MOREY et al. 1916.) EMINENT DOMAIN 228-PROCEEDINGS APPOINTMENT OF COMMISSIONERS. Under Laws 1911, c. 130, authorizing the appointment of a commission for the acquisition of certain lands, one appointment did not exhaust the power, which might be exercised to reappoint the commissioners for further proceedings if necessary to consummation of the intended purpose. [7, 8] It appears, therefore, from the evi- (Supreme Court of New Hampshire. March 7. dence that the defendant was still trying to have the matter adjusted shortly before the judgment was entered. If the defendant is 1. correct, he did not justly owe the whole amount of the note and the entry of the judgment was a great surprise to him. The note only provided that judgment should be entered after maturity "for the amount then due hereunder," and it was inequitable and unjust to enter up the judgment for the whole amount. The Act of 1914, chapter 393, now section 12, art. 75, of the Code, was in force when the note became due. It provides that "In any suit ex contractu or upon any judg; ment, if the defendant shall have any demand or claim arising ex contractu or upon judgment against the plaintiff, the defendant may plead such claim specially, whether such claim of the defendant be for liquidated or unliquidated damages, and whether it be of such nature as may be availed of by way of recoupment without such special plea or not." The defendant was therefore unquestionably entitled to make the claim for damages which arose under the warranty, by virtue of that statute, regardless of what he might have been permitted to do by way of recoupment before the statute. [9] Although we have said that the defendant is not excusable for not reading the note before signing it, and hence ought to have known that the provision in reference to confessing a judgment was in it, yet when he refused to sign the note Mr. Johnson brought the warranty to his attention, and he and Mr. Snavely gave him every reason to believe that the company would treat him fairly. Its action in entering the judgment on April 6, 1915, without notice to the defendant, waiting until the expiration of that term of court and then issuing an execution on May 25th, does not accord with the assurances given by the agents of the company when they induced him to sign the note. [10] While we have recognized the right of a holder of a "judgment note" to enter up a judgment under the authority therein contained, yet when a court is called upon to exercise what Mr. Poe calls its "quasi equitable powers," in determining a motion to strike out the judgment, it should be very careful to see that no improper advantage has been taken of the maker of such note in entering the judgment. How far the appellee can sustain his claim is not for us to now determine, but we are of the opinion that under the circumstances the lower court was right in striking out the [Ed. Note.-For other cases, see Eminent Do main, Cent. Dig. § 582; Dec. Dig. 228.] 243(3)—-PROCEEDINGS If parties in interest in eminent domain proceedings are not properly made parties by failure of notice or in any other manner, their rights cannot be adjudicated. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. 88 628, 629, 700; Dec. Dig. 243(3).] 3. EMINENT DOMAIN 228-PROCEEDINGSREAPPOINTMENT OF COMMISSIONERS-QUESTIONS NOT NECESSARY TO DECISION. Whether the regularity of proceedings before condemnation commissioners could be more appropriately considered on transfer of the case from the superior court after hearing on appeal from commissioners need not be determined in an original proceeding for reappointment of new commissioners. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 582; Dec. Dig. 228.] 4. EMINENT DOMAIN 180-PROCEEDINGS— VALIDITY-FAILURE OF NOTICE. If there is failure of notice of original condemnation proceedings, further proceedings may be had, but, that being the only ground alleged for further proceedings, if the notice is sufficient, they cannot be had. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 489; Dec. Dig. 180.] 5. EMINENT DOMAIN 228-PROCEEDINGS— NOTICE AND APPOINTMENT OF COMMISSIONERS-NECESSITY. Laws 1911, c. 130, authorizing the appointment of a commission for the acquisition of certain lands, having made no provision requiring notice preceding the appointment, and failing to name the appointive power, must be construed to intend application of the general law, which under P. St. 1901, c. 222, § 13, requires notice to be given of the appointment. [Ed. Note.-For other cases, see Eminent Do main, Cent. Dig. § 582; Dec. Dig. 228.] The usual custom acquiesced in for a number of years having been to give notice of appointment of commissioners in condemnation proceedings, it will be presumed that the statute failing to require such notice did not contemplate departure from it. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 582; Dec. Dig. 228.] SIONERS. 7. EMINENT DOMAIN 228 CONDEMNATION [claims against the state should be now efPROCEEDINGS APPOINTMENT OF COMMIS- fected. The prayer is for the appointment of a commission, or the reappointment of the former one, in order that such notice may be given and hearing had that the rights of all claimants shall be determined. earlier petition alluded to in the present one Upon the notice to appear in this court in answer thereto was given to all parties interested. The commissioners thereafter appointed gave notice of their hearings to those who appeared in compliance with the order of court. The appointment without notice of commissioners in condemnation proceedings under Laws 1911, c. 130, providing for the acquisition of certain lands, cannot be justified on the ground that it is like that of the tax commissioners, since tax proceedings are not adversary, and there are no specific parties nor no particular litigation involved, but Laws 1911, c. 169, § 2, specifically requires such a commission, while the condemnation commission requires proceeding initiated by an interested party. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 582; Dec. Dig. 228.] 8. CONSTITUTIONAL LAW 281-DUE PROCESS OF LAW-NOTICE. While due process of law requires that notice of hearings before commissioners of condemnation proceedings must be given the interested parties, all that is required is that a notice be given sufficiently early in the proceedings to protect all rights to appear at time and place stated; so that those who do appear are entitled to further notice, but one who does not appear is in default and cannot complain of failure to give further notice. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 880; Dec. Dig. 281.] 9. EMINENT DOMAIN 228-CONDEMNATION PROCEEDINGS-NOTICE-VALIDITY. Laws 1911, c. 130, requiring reasonable notice to be given to all parties interested by condemnation commissioners, means that notice must be given those parties who have appeared in the original proceeding for appointment of the commissioners, but if no notice is given an interested party of the appointment proceedings, he is not bound by any of the acts subsequently done under them. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 582; Dec. Dig. 228.] Petition by the Governor and Council, on behalf of the State, against Charles H. Morey and others for the appointment of a commission or the reappointment of a former commission in eminent domain proceedings, that further notice and hearing might be had. Petition dismissed. [1] The jurisdiction of the court to now take any action whatever in the matter has been brought in question. It is argued that the appointment of the commission was a purely ministerial act, and that therefore the appointment of one commission exhausted all the power conferred upon the court by the special statute. Laws 1911, c. 130. It is not probable that the Legislature intended to so limit the power of appointment. If, after the first commissioners had been designated, they had died, or become disqualified, or had declined to act, there would have been power to name a new commission. And so, if it should prove that the proceedings of the commission were so irregular or defective that no final judgment or decree could be entered, a like power would exist. The Legislature intended to confer upon the court a power of appointment that would result in a final and binding adjudication of the matter in controversy. [2, 3] Whether the regularity of the proceedings before the commissioners would be more appropriately considered upon a transfer of the case from the superior court, after a hearing upon an appeal from the commissioners, need not now be determined. The present petition is based upon the theory that there may be rights of parties which are in Petition by the Governor and Council, on behalf of the state, alleging that in the year 1911, proceeding under the provisions of the act providing for the acquisition of Crawford Notch by the state (Laws 1911, c. 130), the then Governor and Council caused a survey of the locus to be made and filed in the office of the secretary of state, and applied to the court for the appointment of commissioners to assess the damage to the owners; that a commission was appointed, heard all parties known or understood to be interested in the premises, and filed an award with the secretary of state; that subsequently the Forest Products Company, which had not thereto-no way affected by the earlier proceedings, fore appeared in the proceedings, moved for including the appeals. The question presentleave to appear in the superior court, where ed is whether there are rights wholly outside appeals were pending, which leave was grant- the cases now pending in the superior court. ed upon the ground that the commission had If it is true that there are such rights, it folnot given the notice required by the statute; lows that they cannot be adjudicated in any that the situation is such that other interest-future steps in those proceedings. ed parties may hereafter make claim to the [4] One question to be considered is whethland taken, and that a final settlement of aller there has been a failure to give the notice required by the special act. If there has | upon applications thereafter authorized, as been, other questions may become material. to which no special rule of procedure was If there has not been such failure, there is prescribed. Petition of M. & M. R. R., 68 no occasion for further proceedings here. N. H. 570, 571, 36 Atl. 545. The answer to this question involves a consideration of what the process is by which those claiming interests in these lands are made parties to the condemnation proceedings, so as to be bound by the judgments finally rendered therein. On one hand it is claimed that the notice issued by this court upon the application of the state for the appointment of commissioners is such process, and upon the other that it is the notice given by the commissioners. [5] The question whether due process of law requires notice of the application to appoint commissioners has been argued. Upon this the authorities are somewhat conflicting. The question usually arises upon the interpretation of a particular statute, it frequently involves matters of local practice, and much that has been said has no general application. In some jurisdictions it is held that the appointment of such a commission is a purely ministerial act, and that no notice is necessary. In other states the view is taken that the proceeding partakes more of the nature of drawing a jury for a specific case, that preliminary questions may be raised and considered, and that notice is essential. The special act does not provide that a commission shall be appointed without notice. It does not even expressly provide for the appointment and remain silent upon the subject of notice. Everything is left to be carried out in accordance with the methods provided by the general statutory enactments upon the subject, or in accordance with the accepted practice. The act did not undertake to lay down details of procedure. For example, the appeal provision is entirely silent upon the subject of notice. But it cannot be doubted that the Legislature understood that notice of appeals would be given. Laws 1911, c. But the distinction is obvious. [6] If it be true that, upon the application of one party, the court could constitutionally make a selection of commissioners without notice to the adverse party, it is also true that no such procedure has been commonly followed in this state. The usual, if not the uniform, practice has been to give notice in all such cases. It is not to be presumed that the Legislature intended to disregard this just and reasonable method of procedure. The presumption is rather that it was understood that such procedure would If it be assumed that the former view is be adopted, and that it was not so stated correct, and that notice preceding the ap in the act because of the understanding that pointment is not essential to the protection of it was already sufficiently provided for. constitutional rights, the question here in is[7] It is argued that the power of apsue is still undecided. Did the Legislature intend that such notice should be given? Be-pointment here conferred is like that to apcause the act contains no express provision point the tax commission. upon the subject, it is argued that no notice 169, § 2. is required. But the inquiry is not to be That power relates to the creation of a body limited to a mere literal interpretation of the having certain jurisdiction as to controverwords used. If this were done, no commis- sies which might arise in the future. sion could have been appointed at all. The particular litigation and no specified parties act nowhere in terms confers upon the court are involved. The sole moving cause for the power to appoint, nor does it say that the appointment is the legislative mandate. Here commission shall be so appointed. It merely the situation is very different. The appoinprovides that the state, acting through the tees are to try a specified piece of litigaGovernor and Council, may apply for such tion. Its boundaries are well defined. The appointment, and then goes on to prescribe court has no power to act until moved by the powers and duties of the commission. a party to that litigation whose interests are From this it is at once inferred that the com- adverse to those of other necessary parties. missioners are to be appointed by the court, In appointing a tax commission the court and a part of that inference is that the pro- acts without petition or application of any ceeding is to be conducted according to the kind. It is not an adversary proceeding. accepted practice in this jurisdiction. The reasons which make notice advisable, if not constitutionally necessary, in the present case do not exist in that one. The situations are not analogous, and one does not furnish a precedent to be followed in the other. "The court shall order notice to be given, in such manner as they think fit, of any petition, complaint, libel, application, or motion in writing filed therein, and no judgment or decree shall be rendered thereon without compliance with such order." P. S. c. 222, § 13. No Decisions touching the rights of landownWith this provision in the general law, ers in highway appeals (Carpenter's Petition, there was no occasion for the Legislature to 67 N. H. 574, 32 Atl. 773, and cases cited) declare in the special act that notice of the have no application here. Those cases mereapplication should be given. It was cov-ly construe the peculiar provisions of the ered by the existing statute. The statute statute governing laying out highways. The being a general provision as to applications statute relates to that subject only. It has to the court, the Legislature would naturally no general application and is in no way re |
