B. F. Sturtevant Co. v. Cumberland Dugan & Co.

Rogers, J., delivered the opinion of the Court. This is an appeal from the Superior Court of Baltimore City. The appellant (plaintiff below) is a Massachusetts corporation, doing business as a manufacturer of machinery, in or near Boston. The appellees (defendants) are a firm in Baltimore City, and have for nearly a half a century been engaged in handling and selling machinery as factors or commission merchants, and as such have been dealing with B. F. Sturtevant and the appellant for 35 or 40 years before this suit was brought.

Having for that period of time, received consign ⁶⁰⁸ ments of B. F. Sturtevant’s and the appellant’s machinery to-be sold by them as factors, their principals being first B. F.. Sturtevant, and next the appellant. When the great Baltimore fire occurred, the appellees had in/i their custody in consignment, a lot of machinery of the appellants known as “blowers and fans.” The great Baltimore fire-destroyed this machinery, which was not insured. The appellant-, claims that it was the duty of the appellees as its factors, to - have insured this machinery for the benefit of the appellant,, and not having so insured it the appellees are liable to the appellant, and this suit is accordingly brought to recover the-equivalent of the insurance, namely the market value of the machinery on the date of its destruction by fire.

This claim-of the appellant is based solely upon this contention — which is-denied by the appellees — that the only instruction the appellant ever gave the appellees to insure said machinery were the-printed words, “Stock to be kept covered by insurance for the-benefit of the consignor,” printed in the smallest type at the-extreme bottom edge of long invoices, which it is claimed,. which is also denied, accompanied the consignments of machinery. It is also virtually admitted by the appellant, that no letter.was ever written, or verbal instruction given, to the appelleesto effect any such insurance; nor was there ever made of theappellees any inquiry, as to whether any such insurance had: been made. The sole reliance of the appellant upon which it bases its right to recover, is the alleged instruction contained in these printed words on the invoice. The whole testimony of the appellant, its letters and depositions of its employees-; attest the correctness, of this statement.

The appellees, in. reply to this claim of appellant, prove by the uncontradictedá evidence of Mr. Cumberland Dugan, Sr., the senior member of the appellee’s firm, that 35 or 40 years before the beginning of this suit he, through correspondence, by letters (destroyedsi by fire) had with Mr. B. F. Sturtevant then the owner and-, conductor of the business, an express and special- contract, under which, all machinery was to be consigned to his firm;. ⁶⁰⁹ the appellees, as factors; that this contract has been ever since the time it was made in operation and effect, and the machinery destroyed by the fire was consigned to his firm, the appellees, under said contract and by the appellees so accepted. Mr. Cumberland Dugan, Senior, having testified that all the letters in reference to this contract had been destroyed by the great Baltimore fire, gave the contract as made and set forth in these destroyed letters virtually as follows: That about 1869 the correspondence took place by which Mr. B. F. Sturtevantthen agreed to consign tothe appellees for sale as his agents,, the machinery made by him, and to pay the appellees certain: compensation for selling the machinery, and one specified; charge for expense was to be paid by the appellees on said machinery, which was tobeputf. o. b. in cars at Boston for Baltimore consigned to the appelless. That the appellees were to be allowed for their services and this one charge, twenty-five per cent, from the list or invoice prices of said machinery, and that the only thing above-mentioned the appellees were to payout of this discount, was the freight from Boston to Baltimore.. That insurance, was not named as an item, which his firm had to pay out of this discount for the benefit of Mr. B. F. Sturtevant or the appellant.

That under this express contract his-firm had received consignments from B. F. Sturtevant until his-death, and subsequently from the appellant, and that the machinery destroyed by the fire was accepted by the appellees, under this contract. He further testified without contradiction, that from the first consignment of the machinery until the great Baltimore fire, his firm had never received a word by letter or otherwise, modifying or altering this contract, or instructing his firm to insure the machinery for the benefit of B. F. Sturtevant or the appellant; that his firm always supposed B. F. Sturtevant and the appellant effected and carried its own insurance, on its consigned machinery, as was done by other machinery firms with which the appellees dealt as factors. As to the invoices with printed words on them, Mr. Cumberland Dugan, Sr., and Mr. Cumberland Dugan, Jr., the two ⁶¹⁰ appellees, who composed the firm of Cumberland Dugan and Company, and Mr. Lannon, their bookkeeper, without contradiction testified that they only received consignments with invoices about two or three every two years; that the invoices . accompanying these consignments so far as they saw, had on them no such printed words, directing the appellees to insure the machinery for the benefit of the appellant; that if such printed words had been on the invoices they would certainly have seen them. Mr. Dugan, Sr.-, further testified, that these printed words were not on the invoices accompanying the consigned machinery.

They all testified that no instruction was ever given by the appellant to appellees to insure the machinery for the benefit of the appellant, and that no inquiry was ever made as to whether any such insurance had been ■made. On this testimony the Court of its own motion gave the following instruction covering the case, and submitted the case to the jury on this'instruction, and the verdict of the jury was for the appellees. • By the Court: “If you find that the goods, the subject of this suit, were consigned by the plaintiff to the defendants with invoices plainly requiring “stock to be covered by insurance for the benefit of the consignor,” that the goods were accepted by the defendants without objection, that no such insurance was máde, and that the goods were.- destroyed by fire, then the plaintiff is entitled to recover. “But if, on the contrary, you find that the goods were consigned and accepted -under a prior subsisting contract between the parties not requiring such- insurance, then the defendants are entitled to your verdict. ' - “This means that whether the defendants are or are not - liable to the plaintiff, depends upon the terms of the contract under which the goods mentioned in the evidence were held by the defendants. It means that the question of what were the terms of this contract is a question for the jury to decide from all the evidence in the case. “It means that there is sufficient evidence from which the ⁶¹¹ jury may find that the clause upon the invoices requiring “stock to be covered by insurance for the benefit of the consignor’’ whether or not read by the defendants or their agents was upon the invoices sent with the goods above mentioned and did in fact form a part of the contract under which the said goods were held at the time of the fire. “And if they so find their verdict must be for the plaintiffs. “It means that there is sufficient evidence from which the jury may find on the other hand, that the said goods were held by the defendants at the time of the fife under a contract which was entered into prior to the sending of whatever invoices were sent and which was at the time of the fire still subsisting in which contract there was no provision requiring insurance. “And if they so find their verdict must be for the defendant. “It means that the jury are to look at the whole evidence in the case and from it to determine whether by express agreement or by such conduct on the part of the defendants as the plaintiff had the right to rely upon as evidencing an acceptance of the insurance clause above mentioned printed on the invoices (if the jury shall find that invoices with such clause printed thereon were received by (the defendants) the said clause as to insurance was a part of the contract between the parties under which the said goods were held at the time of said fire.” The contention of the appellant is that the relation between the parties to this suit is that of vendor and purchaser and that it has the right to recover the value of the machinery on the count for goods sold and delivered, which is one of the counts declared on. The appellant offered a prayer on this theory which was rejected by the lower Court, and this forms one exception.

There were two other prayers offered by the appellees and granted, which relate to minor questions and to which exceptions were taken; one was the often approved prayer by this Court, relating to the burden of proof being on the appellant. to prove its case to the satisfaction of the jury by a prepon ⁶¹² derance of evidence. The other granted prayer of the appellees was based on the theory of the appellant as to the printed words as to insurance being on the invoices for the benefit of the appellant. The jury were told if these printed words were not on the invoices, under the evidence, the verdict of the jury should be for the appellees. To the granting of, this prayer the appellant also excepted.

There was no special exception to these granted prayers as,to the insufficiency of' the evidence to support their hypothesis or that a question Of law was submitted to the jury. Another prayer offered by the appellant which was refused by the lower Court, also forms an exception. This prayer segregated solely the appellant’s evidence and omitted all ofthe appellees,’ as to a prior and subsisting contract between the parties as to the terms or conditions of the consignment of the machinery in question. This refused prayer of the appellant, in its exact words, was incorporated in the Court’s instruction and given to the jury.

The fault of the appellant’s first prayer is’that it segregated the plaintiffs testimony on a certain point, arid omits entirely the defendants on the same point, and directs the jury, if they believed them to find for the plaintiff, while if .the jury found the defendants’ testimony to be true, would not have justified the conclusion of the prayer or the findings of the.jury. The prior subsisting contract between the' parties as sworn to by the appellee .was entirely omitted from the prayer. And again the plaintiff had the benefit of the law it was intended to embrace in the exact words of the lower Court’s instructions. Again the plaintiff’s third’prayer was properly refused because there was no sufficient evidence to support it.

The testimony of both parties we think con-. clusively show'that the dealing as to the machinery in question, was a clear and distinct bailment for sale, and not a sale, The machinery was to be sold to purchasers for not less than the list or invoice price, and was not purchased by the appellees. The machinery could not be sold by the appellees at any price they liked, or payment received at any time they liked. Until a sale to a third party, the machinery belonged to the ⁶¹³ appellant, and at any moment it could have revoked the factor’s agency and had the machinery returned to it. This prayer was properly refused by the lower Court.

Prayers must be consistent, and a fatal objection to this prayer is, that the plaintiff’s second granted prayer, is in direct conflict in theory and conclusion to this prayer. In order that instructions shall be binding upon the factor, it is necessary that they be clear and distinct, as it is only a reasonable and just rule, that the factor shall not be liable for a departure from instructions which lack these characteristics. 12 A. & E. Encyc. Laiv,646. Even admitting that the invoices had the notice to insure which is flatly denied by the appellee, can it be said that they were “clear and