Bagby v. Walker

McShbrry, J., delivered the opinion of the Court. The only questions involved in the two cases now before us arise on the single exception reserved to the rulings of the Superior Court of Baltimore on several prayers for instructions to the jury. There were two actions between the same parties tried at the same time in the Court below. In one, Walker and Myers, the appellees here, were plaintiffs, and the appellants were defendants; in the other Bagby and Rivers, the appellants here, were plaintiffs, and the appellees were defendants.

In the first, Walker and Myers sued to recover the balance due upon the contract price of certain lumber sold and delivered by them to Bagby and Rivers; and also to recover the difference between the contract price and the market price of certain other lumber subsequently ordered, but which Bagby and Rivers refused to accept. A judgment was entered in favor of the plaintiffs. In the second case Bagby and Rivers sued to recover damages for a failure on the part of Walker and Myers to deliver the kind and quality of lumber stipulated for, and also for a failure to deliver within the time designated in the agreement a large part of the lumber sold by them to Bagby and Rivers. A judgment of non pros, was entered in the case.

The contract is embodied in a letter from Bagby and Rivers to Walker and Myers under date of January the twenty-ninth, 1891, and a written acceptance of the terms, by Walker and Myers on the same date. The time limited for filling the order was three months. The first delivery under this written contract, about the execution of which there is no dispute, was made in the following March, and the last on November the twenty-seventh, of the same year, long after the expiration of the three ²⁴³ months limit. The price of the lumber actually delivered amounted to sixteen hundred and thirty-five dollars and thirty-eight cents, and the payments made thereon, beginning in April, and ending in August, aggregated eleven hundred and thirty-seven dollars and ninety-eight cents, leaving an unpaid balance of four hundred and ninety-seven dollars and seventy cents.

There was evidence in the case tending to prove that Bagby and Rivers had waived the requirement of time mentioned in the letter of January the twenty-ninth, 1891, as to the delivery of the lumber.— Walker and Myers offered other evidence tending to prove that in the latter part of November, they, at the request and upon a verbal order of Bagby and Rivers, cut and shipped to Baltimore other lumber, in addition to that specified in the contract, at a price agreed upon between them, which lumber they offered to Bagby and Rivers in two lots in January and March, 1892, but that Bagby and Rivers refused to receive it, and that Walker and Myers lost by those refusals one hundred and seventy-nine dollars and twenty cents, that sum being' the difference between the price agreed upon and the market price when the deliveries were tendered. Bagby and Rivers denied giving the order for this additional lumber. The lumber was cut by Walker and Myers at their mills in North Carolina, for the purpose of filling these two orders, and was transported to Baltimore, where it was unloaded on the wharves of Walker and Myers, from whence all of it, except the two lots which Bagby and Rivers refused to take, was hauled by Bagby and Rivers, after being inspected by them, to their furniture factory. Upon these facts the Court instructed the jury at the instance of Walker and Myers that notwithstanding the mention in the letter of January, 1891, of the period of three months as the limit within which the lumber was to be furnished, still, if the jury should find that Bagby ²⁴⁴ and Rivers waived that requirement, and accepted and hauled lumber from the plaintiffs’ wharves until November the twenty-seventh, 1891, then the defendants would not be entitled to recoup against the plaintiffs’ claim any damages sustained by the defendants by reason of the failure of the plaintiffs to deliver the lumber within the time stipulated.

Further, that if the defendants ordered other lumber, that the plaintiffs cut it upon that order and offered it to the defendants at the usual place of delivery; that it was of the quality ordered and that the defendants refused to take it, and pay for it, then the plaintiffs would he entitled to recover damages for that refusal. This was Walker and Myers’ third prayer. And finally, that under the last preceding instruction the measure of damages would be the difference between the price agreed upon and the market price in Baltimore at the dates when the lumber should have been accepted. Mere acceptance of the lumber after the expiration of the time fixed in the agreement for its delivery was not of itself a waiver of the breach committed by the failure to deliver it according to the terms of the contract; nor did such an acceptance preclude the vendees from subsequently suing to recover the damages resulting to them by reason of the non-delivery, from the time of default up to the date of acceptance; nor from recouping, when sued by the vendors, those damages against the latter’s claim for the purchase money.

Central Trust Co., &c. vs. Arctic Ice Machine Manuf. Co., 77 Md., 202. The instruction does not question these principles. It does not proceed upon the' theory that acceptance after a refusal to deliver within the stipulated time is of itself, without more, equivalent to a waiver of the time for delivery, but distinctly leaves to the jury to find from the evidence in the case, whether, as an independent fact, Bagby and Rivers waived the requirement that the lumber should ²⁴⁵ be furnished within three months.

If they did waive that requirement they could not subsequently found an action upon its non-performance, nor rely thereon by way of recoupment. If they condoned the breach, they cannot afterwards base a claim for damages upon it. There was evidence before the jury to the effect that Bagby and Rivers had waived the requirement of time mentioned in the letter of January the twenty-ninth, 1891, and no special exception was taken to the prayer upon the ground that there was no evidence in the cause to support it. It is a mistake to suppose that the prayer is founded upon the assumption that’ a mere acceptance of the lumber was tantamount to a waiver of the time for delivery, and there is nothing in the structure of the prayer at all calculated to mislead the jury to such a conclusion.

There was in our opinion no error committed by the granting of it. The two remaining instructions, given at the instance of Walker and Myers, relate to the lumber which Bagby and Rivers refused to receive. There were three objections suggested to the first of these two instructions, which is the third prayer of Walker