Carlin v. Biddison

Thomas, J., delivered, the opinion of the Court. This suit was brought in the Baltimore City Court to recover damages for the breach of an alleged contract to deliver to the plaintiff one hundred thousand feet of second-hand lumber. The declaration as originally filed contained the six common counts in assumpsit for goods bargained and sold; “for work done and materials provided”; for money lent; for money paid; for money received by the defendant, and for money found to be due on accounts stated, and four special ⁴⁶¹ counts. On demurrer the eighth, ninth and tenth counts were stricken out.

The seventh and tenth counts were amended, and the case was tried on issues joined on general issue pleas to the several counts. The amended seventh count alleged that on or about the 17th of April, 1917, the defendant sold to the plaintiff' 100,-000 feet of lumber at $16.50 per thousand to be delivered to the plaintiff; that the defendant “delivered to the plaintiff 28,000 feet thereof on account of said contract, and received on account of the total purchase price $470.52; that thereafter the defendant failed, neglected and refused to deliver * * * the balance of said 100,000 feet of lumber, and as a result thereof the plaintiff was compelled to go into the open market and purchase 55,000 feet in lieu thereof at a cost greatly in excess of $16.50 per thousand, to wit, $41.50 per thousand; and the plaintiff further lost the difference between the value of the lumber sold to him by the defendant and the market value of lumber of a similar character, to wit, $25.00 per thousand for 17,-000 feet.” The amended tenth count alleged that on or about tbe 17th of April, 1917, tbe defendant sold to the plaintiff “certain lumber at Baltimore, Maryland, to wit, 100,000 feet at $16.50 per thousand, said lumber to be of an average quality to be delivered to the plaintiff on the ground of the defendant at the Monumental Brewing Company’s plant, Frederick avenue near Smallwood street; that the defendant delivered to the plaintiff on said ground about 28,000 feet of said 100,000 feet, but the said 28,000 feet was of such poor character and quality that it did not average up to the average quality and standard of the whole 100,000 feet, and as a result thereof the plaintiff suffered great loss and damage.” During the trial, which resulted in a verdict and judgment for the defendant, the plaintiff reserved eighteen exceptions ⁴⁶² to rulings on the evidence, and a further exception to' the action of the Court on the prayers. ' The plaintiff offered evidence tending to show that the defendant owned the property in Baltimore City formerly owned of occupied by the Monumental Brewing Company, on Frederick avenue and Smallwood street; that in March 1917, the defendant told the plaintiff he had a large quantity of heavy timbers and asked him if he could make use of them, ánd that the plaintiff told him that he had no use for them at that time; that about the 14th of April, 1917, the plaintiff called the defendant up and asked him if he had sold the timbers, and the defendant told him that he had not sold them but was anxious to do so;.that plaintiff asked him where the timbers were,, and that the defendant said they were, at the Monumental Brewery, and that plaintiff-said he would go down' and “look them over”; that the plaintiff and his architect, Mr. S. Bussell, went down to the brewery property the following Saturday to go. “over the situation” and see the timbers. The plaintiff’s testimony as to what they found, and what subsequently occurred betweeen him and the defendant is as follows: “The site was the location óf a brewery with all the necessary stables and ice houses, buildings that seem to be required for that purpose, and the smaller buildings were wrecked, part of the walls was lying down and some of ends of the timbers was still hanging up in the wall, leaving them on a slant, one end on the ground and the other end in the wall, and the stuff was. scattered all over the ground so that there was not any available space for any more than to pull a wagon in, the whole lot was practically covered with this debris. We looked over the timbers.

We saw the condition' of the stuff in these stables and ice houses and one thing and another, and that had the ends rotted and was full of nails and spikes, and very unusual 'sizes., which in itself would have been worth nothing to me, but I went into the two buildings that were standing there, and those buildings had a good many joists, three by twelve and ten by ⁴⁶³ ten posts, and girders going all the way through, one on a floor; the ceilings were very low in those buildings and each floor bad a big girder, I imagine they were 12 by 14 or 14 by 16, all good, clean, Georgia pine, and by taking all the timber on the place in our calculations we decided that we could make plans and build the building really to suit these timbers. So Mr. Bussell sketched tbe layout on Sunday and Monday morning I called up- Mr. Biddison (the defendant) and told him that I thought if we could agree on a price that I could use the lumber that he had down there, and the result of that conversation was that I made an appointment to meet him at Mr. Bussell’s office, 2900 Clifton avenue. * * * He (Mr. Bussell) is the architect and consulting man that I had, and we made an appointment to meet him at eight o’clock Tuesday evening. I took my working foreman, who is another Mr. Russell, with me; and went to- Mr. Bussell’s office. We waited there from eight to something after nine and finally Mr. Biddison came in.

We first discussed some general topics. The first question I put to Mr. Biddison was, ‘Mr. Biddison, what are you going to do about the lumber that is in those buildings/ standing there, as that was one of tbe fundamental elements of tbe whole proposition, and be said, Why, I am going to tear them dowln just as soon as I can get the lumber cleaned up- off tbe ground, they have been in the hands-of a real estate man for sale, but he has not sold them, and I am going'to- take them away from him and tear them -down.’ I asked him what he wanted a thousand for the lumber, both in the buildings and that on tbe ground. He said, ‘Twenty dollars a thousand.’ I told him I did not think it was worth twenty dollars a thousand to me, but I would give him fifteen dollars for it. We haggled about the price for a while, and finally Mr. Biddison got up and stood in the doorway and said, Well, he -was going to leave, but he would take sixteen dollars and a. half a thousand for the lumber that was there.’ I asked him how much he thought he had there and he said it was consider ⁴⁶⁴ ably over one hundred thousand feet.

I' studied over the mattér for a little while and very deliberately and carefully said, 'Mr. Biddison, I will take one hundred thousand feet of the lumber that’you have there at sixteen dollars and fifty cents á thousand, providing it includes what is on the ground and in'the building, and providing that’you will give it to me as fast as I want to use it.’ He said 'AH right, don’t you worry about giving it to you fast enough, all I want you to-do is tó come down there and clean it up off the ground and I will start in and tear the buildings down right away.’ ” The plaintiff further testified that the defendant delivered tc him 28,559 feet of 'the lumber that was on the ground at the time the alleged contract was made, and that he paid for "it;'$471.12, as it was delivered, according to the terms of the 'contract, but that the defendant afterwards refused to tear ed’own the buildings that were standing on the property, or to deliver the lumber that was in them; that the plaintiff, in consequence of the defendant’s refusal to tear down said buildings or to deliver any mo-re lumber, in order to complete the building he was erecting, had “to go on the market” and buy 55,000 feet of lumber to take the place of the lumber defendant refused to deliver, for which he paid $41.50 per thousand feet; that the lumber he purchased on the market was Virginia pine, and inferior to the lumber he purchased from the defendant, which was Georgia p-ine, and that he did not know where he could have gotten lumber of the kind the defendant sold him, and that the lumber he purchased in its place was the “nearest” thing he could get; that he paid for the 55,000 feet $1,375.00 more than it would have cost him fit the contract price, and that he tried to'get the cheapest lumber he could get that would answer his purposes, and did not try to “duplicate” the lumber he bought from the defendant; that the nearest thing to the Georgia pine in the buildings that he could have gotten on the market, in Baltimore Cjity in the spring of 1917, was long leaf Georgia p-ine; thát he was not familiar with the price of long leaf Georgia ⁴⁶⁵ pine in 1917, but that it was much higher than Virginia pine. xifter the foregoing testimony, the plaintiff was asked by bis counsel to tell the price, in May, 1917, of Georgia pine of the sizes in the defendant’s building. Tbe question was objected to, and counsel for the plaintiff offered to prove in answer to the question that in May, 1917, the Georgia pine that could have been gotten in the open market in Baltimore ’would have cost between $65.00 and $70.00, and that it was not of as good quality as the Georgia pine in defendant’s buildings, and the first exception was to, the refusal of the Court to allow the question to he asked and answered. Plaintiff was then asked to state the value of the 17,000 feet of lumber in defendant’s building, not delivered to him, and when the question was objected to on the ground that it did not appear that the plaintiff was qualified to state the value of such lumber, his counsel asked him, if he had ever bought any second-hand lumber, and he replied, “Hot a great quantity.” He was then asked, “Have you bought some ?” and he replied, “Some little, yes, sir.” He was then asked, “When you say ‘some little/ what do you mean, give it to ns in thousands of feet,- have you estimated on it ?” and he replied, “Hot to any extent, Mr. Hammond, no, sir.” He was then asked: “Can yon tell his Honor whether you are qualified to give ns the value of the lumber that was in the defendant’s buildings in 1917?” And he replied: “For my purposes,, absolutely, yes; sir.” He was them, asked the following questioai: “You have testified that the part of the lumber that you did get from Mr. Biddison 28,000 feet, you have described that as being full of nails, the ends being decayed; how did that part that you did get compare with the part that you inspected and did not get,” and upon objection to tbe question counsel for the plaintiff offered to prove in answer to the question that the 28,000 feet delivered, was inferior in every way to the balance of the 100,000 feet the plaintiff was to get, and the second exception was to the re ⁴⁶⁶ fusal of the Court to admit the evidence. The third except tion was to the refusal of the Court to allow the plaintiff to answer the following question: “What was the difference in value between the 28,000 feet you did get and the whole 100,000’ feet that you were to have gotten under the contract ?” There was no reversible error in either of these rulings.

Apart from any other consideration, it is clear that the plaintiff was not competent to testify to the value of Georgia pine in May, 1917, for he had distinctly said that he was not familiar with the price at that time, nor was he competent to testify to the value of the lumber on the ground, or in the defendant’s buildings, for he had said that he had bought very little second-hand lumber, and that he could only tell the value of it for his purposes. The evidence referred to in the second exception, in so far as it related to the condition of the lumber - that was on the ground, i. e., the lumber that was delivered to the.plaintiff, as compared with the condition of the lumber in the buildings, had already been covered by the, plaintiff’s testimony, and he could not therefore have been injured by the rejection of the evidence embraced in that exception. On .crossrexamination the plaintiff stated that the defendant, at the. time the contract was made, was getting ready to erect some houses on the brewery lot, and that he had to get the old material oiit of the way before he could build them, and that that was the reason the defendant wanted to sell the lumber to him. Hie was then asked the following question: “Don’t you know, as a matter of fact, that Mr. Biddison was building houses and he proposed to use and utilize all the material in the building that he could for his own construction?” And the fourth exception is to the action of the Court permitting the question to be answered.

The plaintiff’s reply was.:. “I understood at the time he was going to build some houses there and was going to use the brick and material that was suitable for building small two-story houses, and I also knew that it was absolutely necessary for Mr. ⁴⁶⁷ Biddison to get some one to clean up this mess that was on the outside before he could proceed with his houses too-.” Independently of the question whether the evidence elicited by the question was admissible for tbe purpose of showing the subject matter of the contract, and the surrounding circumstances, as reflecting upon the understanding of the parties to the agreement (Machen v. Hooper, 73 Md. 342 ), the answer of the witness did not injure the plaintiff, for to the extent