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United Book Press12/3/2001
United Book Press, Inc., appellant, brought suit in the Circuit Court for Baltimore County against Maryland Composition Co., Inc., appellee, alleging breach of contract and seeking indemnity. Appellant appeals from a judgment entered in favor of appellee after the circuit court, at trial, granted appellee's motion for judgment at the close of appellant's case. In addition to general principles of contract law, including the duty to mitigate damages, the parties have urged consideration of judicial estoppel, equitable estoppel, waiver, merger, accord and satisfaction, and the preclusive effect of a confessed judgment. For reasons that follow, we shall reverse the judgment of the circuit court and remand for a new trial.
Factual Background
Because we are reviewing the grant of a motion for judgment rendered at the close of appellant's case, we shall summarize the evidence introduced by appellant. Appellant was in the business of manufacturing books. It entered into a contract with Strathmore Directories, Ltd. (Strathmore), to print a "Who's Who" directory. Strathmore provided appellant with a computer disc containing the text to be included in the book. Appellant entered into a contract with appellee, a typesetter, to typeset the text. Appellant gave the disc to appellee. Appellant presented testimony that appellee was obligated to proof read its work.
Appellee omitted the "K" section from the type that was set, and the error was not discovered until after 4,962 books had been printed and delivered to Strathmore. Strathmore learned of the error from one of its customers. It advised appellant, and appellant advised appellee. According to testimony at trial, appellee acknowledged that the "K" section had been deleted from its typeset and explained that it occurred when the disc was converted to a format that was compatible with its type setting system.
Strathmore refused to pay for the books. Appellant attempted to correct the error in part by providing a limited number of the missing "K" sections to be placed in some of the books. This was done at a cost of $3,000.00. Appellant contacted appellee and asked appellee to split the cost. Appellee agreed and, subject to a $1,500.00 credit, appellant paid appellee's bill. Strathmore continued to refuse to pay its bill.
On June 30, 1999, appellant filed a complaint in the Circuit Court for Baltimore County against Strathmore. Appellant sought a judgment by confession based on (1) the contract between it and Strathmore which contained a confessed judgment clause; and (2) a supporting affidavit. Appellant alleged in the complaint that, pursuant to the contract between it and Strathmore, appellant provided page proofs to Strathmore for approval prior to printing the books, and the books as printed conformed to the page proofs as approved by Strathmore. Appellant further alleged that it delivered 4,962 books to Strathmore and issued invoices in the total amount of $97,667.64. Appellant asserted that Strathmore refused to pay the invoices based upon the absence of the "K" section in the books even though that section was absent from the page proofs that had been approved by Strathmore. The attached affidavit, in pertinent part, stated that the amounts claimed were "justly due and payable."
On June 30, 1999, a confessed judgment was entered in favor of appellant in the amount of $97,667.64, attorneys fees in the amount of $14,650.15, and costs. On July 13, 1999, a notice of confessed judgment was served on Strathmore. The notice advised Strathmore, a nonresident, that pursuant to Rules 2-611(c) and 2-321(b)(1), it had 60 days from the date of service to file a motion to open, modify, or vacate the judgme
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