Trupp v. Wolff

Menchine, J.

dissenting:

Assuming, without agreeing, that an issue of fraud had been properly pleaded and that legally sufficient evidence thereof had been shown to admit parole evidence to contradict the express terms of a written contract, I must dissent because of my conclusion that in any event Florence Hendler Trupp should have been barred as a witness when offered by the plaintiff, Susan Wolff.

Although the form of the subject litigation was a bill for declaratory relief initiated by Susan C. Wolff, the true object of this action is to declare that a written contract executed by her mother Florence Hendler Trupp as a deed of gift absolute in form to Bernard L. Trupp, now deceased, may, in effect, be reformed and declared to be a wholly different contract. The determination of such an issue by a court of equity cries out for prosecution of the action in the name of the mother as the real party in interest as the contracting party. Maryland Rule 203 a.

The rule declared in Eastern State Hospital v. Graves, 52 S. E. 837 , (Virginia, 1906) has particular relevance here. In Eastern it was said at 838:

“It is further well settled that the courts will *622 determine who is the real party in interest by a reference, not merely to the name in which the action is brought, but to the facts of the case as they appear in the record.”

In 30A C.J.S., Equity, § 142, at 113, it is said:

“The term ‘necessary parties’ also includes persons who, while not necessary or indispensable on account of their own interest, yet are so connected with the subject matter of the controversy that it is necessary to have them before the court for the proper protection of those whom the decree will necessarily and directly affect. A defendant cannot be required to litigate questions which primarily and directly involve issues with third persons not before the court.”

It is further said in § 143, at 115-16:

“All the parties to a contract are ordinarily indispensable parties to a bill in equity for its enforcement or for its rescission and cancellation or to enjoin its performance or its breach, particularly where they have joint or common rights or liabilities. The rescission of an agreement requires the presence of all claiming property through such agreement.”

In Crook v. Brown, 11 Md. 158 , it was said at 171:

“The question [who are necessary parties] must depend, in a great measure, upon the object, as well as the subject of the bill, the relief sought, the privity between the parties, and the manner in which their several interests may have arisen. It is impossible to state a general rule applicable to all cases. The most eminent chancellors have used different language in defining the doctrine as to parties; and the elementary works on pleading, as well as decided cases, show a great variety of exceptions.”

*623 Although not directly on point, the case of Ward v. Hollins, 14 Md. 158 , declares a principle that I conceive to be analogous. In Ward , wherein the bill of complaint sought to void a deed as fraudulent, it was said at 167:

“The object of the proceedings being to assail the deed of the 28th of December, 1854, either for the purpose of having it rectified or vacated, all the parties to the deed are necessary and proper parties to this cause, without whom no valid decree can be passed.”

This is in accord with the generalization declared in Miller, Equity Procedure (1897), at 26:

“All persons having an interest in the object of the suit ought to be made parties.”

The trial judge refused to make the mother a party-plaintiff at the request of the defendants. His refusal was error. That error permitted the call of the mother as a witness and permitted her to repudiate the specific terms of her own written agreement and to detail a completely different contract, although the lips of the other party to the formal document were sealed in death. Thus form was exalted over substance and the intended safeguards imposed by the Dead Man’s Statute reduced to a mockery. The mother should have been declared a necessary party-plaintiff. She should thus have been eligible to testify only in accordance with Courts Article § 9-116. (Formerly Article 35, § 3.)

The sua sponte action of the trial judge in making her a party-defendant furnished the coup de grace to the restrictions of the statute by facilitating her call by the nominal opposite party — who was in reality her alter ego. The majority acknowledges that the mother could have instituted the action. Is there any doubt that in such a case she would be silenced by the statute? The filing of the action in the name of the daughter is a transparent — and now successful — effort to unseal her lips. Thus she achieves by subtlety and indirection the ability to offer personal *624 testimony in conflict with her formal actions without concern for rebuttal because the other party to her contract is deceased.

I would remand for a trial in a form in which the mother was a party-plaintiff. The majority declares: “To hold that Mrs. Trupp was a ‘necessary’ party plaintiff would burden every donor of a conditional gift with the costs and concerns of litigation necessary to enforce the condition.” (Italics supplied.) This comment conveniently and completely overlooks the fact that the true purpose of the subject litigation was not to enforce a condition but to establish that there was a condition in the face of formal written acknowledgements by the mother to the contrary.

I would reverse.