Columbian Iron Works & Dry Dock Co. v. Douglas

McSherry, C. J., delivered the opinion of the Court. This suit was brought to recover damages for an alleged breach of contract. The declaration'contains two counts; one upon the contract and one for money received by the defendant for the use of the plaintiff. The first count alleges in substance, that the plaintiff purchased from the defendant “ all the steel scrap in the ship yard of the defendant * * consisting of clippings and punchings from the steel plates and angles and beams used in the construction of the United .States cruisers built by said defendant;” and that the de ⁵⁷ fendant was to load the said scrap at the plaintiff’s expense upon railroad cars on scows at its works.

That the defendant agreed to furnish clean steel scrap consisting only of clippings and punchings from the steel plates, angles and beams of the United States cruisers built by it, but that, though warned by the plaintiff not to deliver or to mix with said steel, any iron, copper or other scrap, yet the defendant, without the plaintiff’s knowledge, in violation of its agreement, did deliver such iron, copper and scrap mixed with the steel scrap, whereby the steel scrap was rendered unmerchantable. That relying on the contract and on the good faith of the defendant to deliver the material purchased, the plaintiff upon presentation of an invoice from the defendant for three hundred and fifty-seven thousand and seven hundred pounds of steel scrap, paid the defendant the sum of two thousand six hundred and seventy-four dollars and seventy-five cents ; and that the plaintiff immediately upon discovering, after the delivery of the material, that the defendant had wrongfully mixed iron, copper and other scrap with the cruiser steel scrap purchased, demanded a return of the money paid, and asked that directions be given with reference to the disposition to be made of the scrap, but that the defendant refused to return the money or to assume any responsibility as to the goods, whereby the plaintiff sustained great loss. The defendant pleaded the general issue. The verdict and judgment were for the plaintiff and the defendant has appealed.

There is but one exception in the record and that brings up for review the rulings of the Court of Common Pleas upon the prayers for instructions to the jury. The contract sued on is, according the contention of the appellant, wholly in writing, whilst according to the contention of the appellee it is partly in writing and partly in parol. Whether it be the one or the other is of practically little consequence. If wholly in writing, it is evidenced by numerous letters and telegrams ; and if partly in writing and partly in parol, it is evidenced by the same letters and telegrams, and by interviews between the agent of the plaintiff ⁵⁸ and some of the officers and employees of the defendant.

The negotiations opened July the nineteenth, eighteen hundred and ninety-two, with a written inquiry from the plaintiff to the defendant, as to whether the latter had on hand and for sale any steel scrap, angle or plate croppings or punchings. To this the defendant, which is a ship building company, replied the following day that it had a large quantity of steel scrap left from the Government cruisers that it had constructed; arid that this scrap was first-class material. Considerable correspondence then followed .until August the third. This correspondence related to the price, quality and quantity of the material, and included an offer at a named sum which was rejected; but subsequently a price was agreed on.

Throughout the correspondence and the interviews the material negotiated for was described and understood by both parties to be scrap from cruiser steel. Two of the United States cruisers, the Detroit and the Montgomery, had been built for the Federal Government by the defendant at its yard in Baltimore. The steel of which the hulls of these vessels were made was required to be of a high grade and quality. The shearings, clippings and punchings from the plates, beams and angles used in the construction of the cruisers were the steel scrap which the plaintiff agreed to purchase and the defendant agreed to sell.

Not only was no other material contemplated, but all other and different material was, in express terms, excluded. On August the second the plaintiff wrote as follows : “I now confirm having made the purchase from you of from 125 to 175 tons steel scrap, consisting of clippings and punchings from the steel plates and angles used in the construction of the United States cruisers built by you, at $ 16.50 .per gross ton f. o. b. cars your works, and will wait your confirmation of the sale. Terms of payment as usual in such cases, net cash, 30 days. We will send you instructions in regard to shipment within a few days, and would be glad to know when it will suit your convenience to load up the scrap.” ⁵⁹ And the next day the defendant replied : “Yours of 2nd to hand, and contents noted.

In reply we respectfully call your attention to ours of 2nd, wherein we say the price of the material for which you are in negotiation with us is $16.50 per ton net. Of course this does not mean that we shall load it on the cars, which we do not propose to do, neither will we accept other than prompt cash payments, as the cars leave here loaded, or short time paper, with interest added at the rate of six per cent, per annum, endorsed to our satisfaction. These are the terms. We thought you understood this portion of the inquiries, as they have always been named.

These two points accepted by you and the material is yours.” Upon the receipt of this letter, instead of replying in writing, the plaintiff, who is an iron merchant, doing business in New York, sent his brother, John B. B. Douglas, to Baltimore to settle the matter and to conclude the negotiations. When Mr. Douglas reached Baltimore he called on Mr. Malster, the president of the defendant company, and they discussed the proposed terms of purchase and the cost of moving the material from the company’s yard to the wharf for loading. Mr. Malster had described the steel scrap as “a nice, clean lot.” Upon examining the pile Mr. Douglas noticed that there was a considerable amount of iron pipe and galvanized iron and pieces of wrought iron lying on the pile, and to this he took exception. Mr. Malster’s office assistant stated in reply that there was but a small quantity of this iron in the pile and that it was so entirely different in appearance from the steel that it could easily be kept out when loading.

Upon the return of Mr. John Douglas to New York, the plaintiff, on August the sixth, wrote in part as follows: “ Confirming conversation with your Mr. Malster, yesterday, relative to your favor of third instant, I will take the lot of punchings and clippings from plates and angles of cruiser steel, at $16.50, per gross ton where they lie, terms cash on presentation of bill with railroad shipping receipt attached. We will pay you 15c. per ton for loading ⁶⁰ on cars, and if we ship by lighter or railroad float will pay ioc. per ton more (25c. per ton in all), to cover cost of cartage in your yard, and loading on lighter or in cars on float * * * In loading the scrap, please keep out all the light scrap, such as sheet or galvanized iron, and steel or pipe, and the other materials, such as turnings and borings. I wish the stock loaded free from all such materials and dirt and earth, as my customer is particular in regard to this.” To this letter the defendant, on August the eighth, replied as follows : " In reply to yours of sixth instant referring to purchase of material will say: We accept your proposition to sell to you what punchings, clippings or shearings from plates, angles, beams, etc., we have from cruisers, for $16.50 per gross ton, as they now lie in our yard, and you to pay 15 c. per ton additional to the above-mentioned figure, for loading cars in our-yard, when they are loaded upon our track. Thus far your proposal is accepted:’ ’ Then followed some observations as to the cost of loading and the letter concluded in these words : “ Furthermore, we desire you to send some one familiar with the quality of such material, as referred to in our several letters, so as to pass upon it as to quality, for we wish you to take notice, and be guided accordingly, that there shall not be any rebate on the said material, on account, of light weight, dirt or quality of material, or for any other cause after having left our yard.” On the ninth Douglas replied.

Part of his letter reads as follows: “ Regarding my-sending some one to inspect the loading of the scrap, it is not very convenient for me to do so at present, and I do not think it is necessary unless you choose to take up so arbitrary a position as to compel me to do so. I would be satisfied to- accept the material as represented by you, that it is the ‘ punchings, clippings and shearings from plates, angles, beams, etc., from cruisers,’ with your assurance that you would exercise every care that no other material is shipped. Light sheet iron, borings, turnings, etc., do not come under your description, nor ⁶¹ would such real estate as might be shovelled into the cars with the steel. We are paying you a high enough price to warrant your taking some little extra care in this respect, and will be satisfied with your assurance in regard to it.

It would be impossible for any one to accept a lot of scrap as being of the quality represented. We know what the requirements of cruiser steel are, and presume what has been delivered to you has pássed the Government inspection. The only point we could decide would be whether what you loaded on the car was covered by the terms ‘ punchings, clippings and shearings from plates, angles, beams, etc.,’ and in my opinion it should be unnecessary for us to send any one to decide such a matter.” Getting no reply he again wrote on the sixteenth, and amongst other things stated: “ In regard to sending some one to inspect the loading of the scrap, as already explained, it is hardly convenient to do so, and I would prefer to leave it to yourselves to load only a nice lot, which would come entirely within the description, and so be a means of leading to further business. However, if you could arrange a day for loading, say Tuesday or Wednesday of next week, when we could have a float in, I would try to have some one on hand to inspect the scrap.

If these, or any other day would suit you,