Anderson v. Stewart

³⁴² Pearce, J., delivered the opinion of the Court. This is an action of replevin instituted by James W. Anderson against John H. Stewart to obtain possession of “fifteen hundred cases of three pound cans, together with their contents, cases and labels,” which the nar charges the defendant took and unjustly detained in Harford County. Subsequent to the bringing of the suit, and before plea filed, the suit was duly entered to the use of Christian Smith, Willard G. Rouse and R. Harry Webster, copartners, trading as Smith, Rouse and Webster. The single plea filed was that the defendant “did not take the goods and chattels mentioned in the schedule.” James W. Anderson was a resident of St. Louis, Mo., and the equitable plaintiffs and the defendant were all residents of Harford County, Md. A replevin bond in the penalty of $4,000 was given before the writ issued, by Christian Smith, Willard G. Rouse, R. Harry Webster and John G. Rouse for and in behalf of the said James W. Anderson, with condition as required by law.

At the trial of the case, R. Harry Webster testified that he was a member of the firm of Smith, Rouse and Webster, canned goods brokers in Harford County, Md., during the year 1904, the other two members being Christian Smith and Willard G. Rouse, and that his firm during 1903 and 1904 were factors for the defendant, John H. Stewart, under written contracts for each year, both of which were similar, and were produced by the witness, and identified, and the execution thereof proven by him, the contract for 1904, being as follows: Contract for ' No. 405 Advances and Commission Sales Between John H. Stewart, Packer and Smith, Rouse and Webster, Factors. Bel Air, Md., March 31, 1904. Advanced to John H. Stewart, Rocks, Md., hereinafter called Packer, by Smith, Rouse & Webster, Commission Merchants, Bel Air, Md., acting as factors for packer in his or their business of packing fruits and vegetables, the follow ³⁴³ ing supplies and materials to be charged at the prices and delivered upon the terms herein mentioned. 750 No. 2 cases at 9 cts. each. 3,000 No. 3 cases at 11 cts. each. 18.000 No. 2 Tomato cans at $1.50 per hundred. 72.000 No. 3 Tomato cans at ¿S1.95 per hundred. Sufficient lbs. solder at 14)^ cts. per lb. ' Sufficient labels at .90 per thousand No. 3’s. - Seed: Sufficient tomato at 1.25.

Packer’s option of increasing or decreasing the above amount to the quantity needed by him at his factory during the season of 1904. Delivery: F. O. B. Baltimore, Md. Shipment to be made as follows, subject nevertheless, to any strike, fire or other unavoidable casualty which may interfere with our obtaining shipment from manufacturers: Last half of May. Terms. — Packer agrees to give promissory note payable Nov. 25, ’04, with interest from May x, ’04, for amount of materials hereunder and to place with us for sale his or their entire pack of canned goods and to allow us five per cent. (5 per cent.) commission for selling the same.

We to guarantee the payment of all goods sold by us, provided same are approved and accepted by purchasers, and to bill all goods sold, collect the proceeds and apply same to any indebtedness to us until same is paid in full, and to pay balance to packer promptly as soon as returns are received. And it is hereby understood and agreed that the cans and other materials herein mentioned, or such cans or other materials, supplies, fertilizers or cash as may be at any time hereafter delivered to packer by us, are advanced by us, as factors, to the packer to enable packer to engage in the packing business, and such advances, as well as any cash which we may from time to time advance packer for the purpose of his or their business, are made only because of our relation to the packer as factors and on account of our rights growing out of this relationship to a lien upon the materials advanced as well as the manufactured product, and it is therefore understood and agreed that the indebtedness to us for any advances made either hereunder, heretofore or hereafter, shall constitute a lien upon packer’s pack of canned goods and the proceeds of the sale thereof, whether collected by us, or in process of collection, and also upon any materials or canned goods that packer may have left over after the packing season, and as an incident to such ³⁴⁴ relationship, it is understood that we are entitled to full title to and possession of the manufactured product at any time we may demand. And as a condition to and as a part of the consideration of the contract between us, it is agreed that in the event of the death of the packer or packer’s failure to meet his or their obligations to us as they mature or packer petitioning or being petitioned against in bankruptcy or insolvency, or in the event of any assignment by packer for the benefit of packer’s creditors, or any writ of execution, levy or attachment being issued against packer, packer directs us to take and ship said goods, either for sale or storage, and when sold to apply the proceeds of the sale of them as hereinbefore mentioned, and packer hereby authorizes any one in possession of said goods to deliver them to us upon our request, it being the intention of this agreement that in any of the aforesaid events we shall have the exclusive right to the possession of all of said goods. The above memoradum of advances with the terms and agreement thereunder is accepted and agreed toby each of us.

John H. Stewart, Packer. Smith, Rouse & Webster, Factors. That during the canning season of 1904, the defendant, John H. Stewart, was largely indebted to the said firm for advances and said firm sold fifteen hundred cases of No. 3 canned tomatoes for the defendant to the plaintiff on two separate occasions, five hundred (500) cases at one time and one thousand (1,000) cases at another; that the contract for said sales was made in triplicate, one copy of which went to the plaintiff, one to the defendant and the other was kept by said firm as brokers, and the defendant returned to witness’ firm his warehouse receipt for said goods to J. M. Anderson & Co.; that the plaintiff was well known personally to the witness’ firm and was himself in Harford County in June, 1904, looking after the purchase of canned tomatoes, that said purchase was made on plaintiff’s own account but when the contract was drawn'plaintiff directed to have it made in the name of J. M. Anderson & Co., the plaintiff’s firm, which he used for his convenience in shipping and handling said goods; that said contracts were fac simile of each other, all made by the same impression, and were separated by being torn apart on perfor ³⁴⁵ ated lines; and that said contracts or sales tickets were duly signed by said Smith, Rouse & Webster, brokers, but that the copies of said contracts or sales tickets hereinafter set forth are fac similes of said contracts or sales tickets except that such signatures are omitted; witness could not say that the defendant was informed with reference to said sale other than by the delivery to him of a copy of the contract nor can he say that defendant knew that the purchase had been made by the plaintiff for his own account or that the defendant knew that the plaintiff was a member of said firm. The plaintiff’s firm beside himself consisted of James M. Anderson and Louie A. Anderson, the former of whom has died since this suit was brought, leaving the plaintiff and said Louie his surviving partners.

The plaintiff then offered to read in'evidence the copy of the said contracts or sales tickets in the possession of witness’ firm, which is as follows: Rating No. 3146 Bel Air, Md., Sept. 2, 1904. . Sold to J. M. Anderson & Co., St. Louis, Mo. For account of John H. Stewart. 500 cases No. 3 standard tomatoes, Stewart brand at 70c. per doz. Terms, cash less % in ten days from date of invoice which is to be dated Sept. 20.

Delivered f. o. b. Rocks, Md., M. & P. R. R. To be shipped during the month of October, 1904. Swells guaranteed for six months from date of invoice; all other claims must be reported in 30 days from date of invoice. Accepted ...........................Brokers.

Rating No. 3181 Bel Air, Md., Sept. 14, 1904. Sold to J. M. Anderson & Co., St. Louis, Mo. For account of John H. Stewart. 1000 cases No. 3 standard tomatoes, Stewart brand, at 70c. per doz. Terms, cash less 1 y2 % in ten days from date of invoice which is to be rendered Oct. 5th.

Delivered f. o. b. Rocks, Md., M. & P. R. R. To be shipped when requested before Jan. 1, 1905. July 1, 1905. Swells guaranted for six months from date of invoice; all ³⁴⁶ other claims must be reported in 30 days from date of invoice.

Goods to be held free of storage until Jan. 1, 1905. Buyers to pay insurance after Oct. 15, 1904. .....................■..... Brokers. The defendant objected to this offer because of an alleged, variance between said contract and the declaration, in respect of parties, and the Court sustained the objection and declined to permit the contract to be given in evidence, and the first exception was taken to this ruling.

The plaintiff thereupon asked leave to amend the writ and declaration by introducing Louie A. Anderson as an additional plaintiff, and describing him and the plaintiff, as surviving James M. Anderson, formerly partners, trading as J. M. Anderson & Co., to which amendment the defendant objected, and the Court sustained the objection and refused to allow the amendment, to which ruling the second exception was taken. The plaintiff then stated to the Court, thatthough he had other evidence, it would all be affected by the Court’s ruling, and it was therefore not offered. The defendant then asked an instruction that the plaintiff had offered no evidence legally sufficient to entitle the plaintiff to recover and their verdict must be in favor of defendant for the return of the property replevied, one cent damages and costs, which instruction the Court gave, and the plaintiff excepted to that ruling, which constitutes the third exception. Verdict was rendered accordingly, and judgment entered on the verdict, and an appeal was ordered in the following words: “Mr. Forwood, Clerk: Please enteran appeal in the above entitled case to the Court of Appeals of Maryland.

F. R. Williams, S. A. Williams, Attorneys for Plaintiff. There was a motion to dismiss the appeal for the reason that it was taken, as alleged by the appellee, by the plaintiff, James W. Anderson, who at the time the appeal was taken had no interest in the result of the suit as it had been, sometime before the trial, entered to the use of Smith, Rouse and ³⁴⁷ Webster. This contention is based upon the fact that in signing the order for appeal, the Messrs. Williams signed as attorneys for the plaintiff (singular) instead of for the plaintiffs (plural), and the appellees draw from this the arbitrary conclusion that the purpose was to appeal for Anderson only, and not for the equitable plaintiffs, and in support of this motion We are referred to Patterson v. Gelston, 23 Md. 446 , and Trayhern v. Nat.

Mech. Bank, 57 Md. 596 . In the former case it was held, as we think correctly, “that every appellant must appear to be aggrieved by the judgment complained of, in order to be heard on his appeal; and, ordinarily, no one can properly be said to be aggrieved by a judgment unless it be rendered upon a matter in which he has some interest or right of property.” Tha.t was