Courtney v. William Knabe & Co. Manufacturing Co.

Page, J., delivered the opinion of the Court. This suit was brought by the appellants, trustees of H. Clay Tunis, to recover the price of certain mahogany lumber alleged to have been sold by Tunis to the appellees. The narr. contains two money counts and a special count. The defendants plead the general issue.

The judgment being for the appellees the appellants have appealed. Five exceptions were taken at the trial. The first four to ⁵²⁴ the admission of evidence; the fifth to the ruling of the Court on the prayers. The first and third exceptions raise the same questions, and will be considered together.

To maintain the issues on then-part the plaintiffs offered the following letters, viz: Baltimore, July 2nd, 1900. Messrs. William Knabe & Co., City. Dear Sirs:—I beg to confirm sale to you of the following mahogany mentioned upon my list, a copy of which I enclose, namely all the 5-8, all the 4-4 No. 1 and 2 and 4-4 select, common 10 to 16 feet'long, all of the 5-4 and 6-4 and 8-4, except the common and culls, and end lengths from 4—4 No. I and 2 and select common 8 to 9 and 3 to 7 feet long, as you may be able to use to advantage being the amount furnished up to 100M ft.

Price on the 5—8 to be six cents per foot, and on the balance eleven cents per foot, delivered in your yard, delivery to be made this month. Terms: Four equal payments to be made on November 10th, 1900, January 10th, 1901, February 10th, 1901, and March 10th, 1901. Yours truly, H. Clay Tunis. Baltimore, July 6th, 1900.

Mr. H. Clay Tunis, City. Dear Sir:—Referring to your favor of the 2nd inst., confirming order given to your Mr. Welch, for mahogany, beg to say, that the same is correct, as to quantities, terms, etc., as specified. Kindly advise us two or three days before you have the lumber brought to the city, as we will have to make some preparations for receiving it into our yards. Yours truly, William Knabe & Co. J. N. H. A witness then testified that he had made the sale referred to in the letter of Knabe & Co. on behalf of Tunis; and on cross-examination said the Knabes “were to judge whether the lumber suited their purposes by the approval and inspection of it, upon its arrival in Baltimore;” whereupon the counsel for the defendants asked him if the agreement (contained in the letter), was “ the original contract?” and was it (the lumber) to be subject to their (Knabes) approval and inspec ⁵²⁵ tion.

In the third exception, the witness was further questioned as to the making and substance of the verbal contract through the agency of the witness. These questions, and the answers, were objected to upon the grounds that the letters contained the contract, and that parol evidence could not be admitted to add to or vary it: but the Court overruled the objection and held the letters did not contain the original contract, and the defendant had “a right to go into, what the original contract ” was. The question presented by these exceptions therefore is, whether the letters contained, or were intended by the parties to contain, the contract; or whether they were intended merely to refer to a contract that had already been made and to confirm it. It is too plain for argument that if it was intended to reduce the contract to a writing which should be the expression of what the parties had done, or intended to do, all previous stipulations, negotiations and terms are supposed to be embodied in the writing, and parol evidence is not admissible to add to or vary it.

Artz v. Grove, 21 Md. 456 . And it is equally plain that if an offer is communicated by letter and an acceptance is made, the offer becomes a contract between the parties. Stockman v. Stockman, 32 Md. 207 ; Hand v. Evans Marble Co., 88 Md. 231 ; Wills v. Carpenter, 75 Md. 84 . Is this case within any of the principles set forth in the cases cited above ?

It seems to us clear that the letter of Tunis was not intended to and did not import more than a confirmation of a transaction that had been theretofore made by Welch, the agent of Tunis. Tunis’ letter specially so states : “ I beg to confirm sale to you,” etc.; and what follows this assumes that a sale had already been made of the lumber mentioned, to be delivered and paid for as stated. Knabe & Company’s reply shows that they so regarded it. They say “ your favor of the 2nd inst. confirming order given to your Mr. Welch, etc.” The letter of Tunis does not admit of a construction that would amount to an offer to sell.

It refers exclusively to a prior transaction, and only “ confirms ” a sale that had already been made by Welch, who, as it appears from ⁵²⁶ the evidence, was his “ hardwood salesman.” Nor does Tunis in his letter undertake to state the contract of sale except as to “ quantities, terms, etc.” As to all other conditions, if any, no reference at all is made. As we have already said, it also seems to be clear that the Knabes so construed the letter, for in their reply they do not accept an offer, but only acknowledge the receipt of the Tunis letter, which they say “ confirms order given to your Mr. Welch;” and then they add “ that the terms of the order as contained in the letter is correct as to quantities, terms, etc., as specified.” If no order had been given to Welch as agent of Tunis, then there would be no evidence of a contract of sale in the case; and if there was such an order, that was the thing the parties by their letters confirmed. What was the “ order” thus confirmed ? Evidence was admissible to show what it was.

So far as stated in Tunis’ letter, and admitted to be correct in Knabe’s letter, no evidence was required because to that extent both parties had admitted its terms; but these admissions went no farther than stated, and if there were other features, not stated in the letters, that had been agreed to by both parties, it was competent for either party to show what features' of the order had been omitted from the letters. It was the whole order as given to Welch, and not a part of it, that Tunis “ confirmed.” It was therefore the order in its entirety that constituted the contract of sale between the parties. We find no error in these rulings. The plaintiffs further to maintain the issues on their part then offered in evidence the docket entries in the case of Uptegrove & Co. v. Tunis, being an action to replevin brought by the former against the latter to recover from the latter the lumber which is the subject of this suit.

After the introduction of these, and also the original papers, as well as the testimony taken therein, and also the instructions granted and refused by the Court, the appellees offered evidence tending to prove that Tunis had fraudulently purchased the lumber from Uptegrove & Bros, and therefore had fraudulently obtained possession of it. The appellant objected to the reception of ⁵²⁷ this evidence. The Court, however, overruled these objections as well as a motion to strike out and exclude such evidence as had already gone to the jury subject to the appellants’ objections; and these rulings constitute the second exception. The ground of the appellants’ objection to this evidence was and is that the title to the lumber had been finally adj udicated in the replevin suit, and therefore in the present case the title was no longer an open question.

It is well established that a former judgment upon the same subject-matter operates as an estoppel between the same parties, provided that it appears by the record or other proof that the matter in issue was decided in the former suit; Whitehurst v. Rogers, 38 Md. 512 , and the term “parties,” include those who are directly interested in the subject-matter of the suit, knew of its pendency and had the right to control and direct or defend it. McKinzie v. B. & O. R. R. Co., 28 Md. 175 . It is shown by the evidence, and not contradicted, that Knabe & Co. had full knowledge of the former suit. Mr. Ernest Knabe testified that he “had an understanding and agreement with Uptegrove, at the time he laid the replevin, to get possession of the lumber, that he (Knabe) would aid him provided Uptegrove would aid him.” Whatsoever, therefore, was decided in the replevin suit as to title is now res adjndicata in the present case.

Now, what was decided in the former suit, as appears by the record or other proof? Two pleas were there interposed, first, non cepit, and second, property in William Knabe & Co; the replication was property in the plaintiff (Uptegrove), and not in Knabe & Co; the verdict and judgment were for the defendant, but the-Court in the judgment did not order a return of the property. Unexplained, the judgment and verdict could have been rendered, either upon a finding that the property was not in the possession of the defendant (Herzberg v. Sachse, 60 Md. 433 ); or that the plaintiff had not title or right of possession as against the defendant (Seldner v. Smith, 40 Md. 612 ); or, that the title and right of possession was in Knabe & Co. It is impossible to determine, however, from ⁵²⁸ the form of the verdict, upon which of these grounds the decision of the Court (who sat as Judge and jury), was placed. Nor do the instructions granted by the Court throw any light upon this difficulty.

There were only two prayers granted. One, upon the Court’s own motion, wherein the pivotal fact, upon which' the defendant’s right to a verdict depended, was whether or not the goods were in the “possession of the defendant at the time of the institution of the proceedings.” If there had been no other instruction than this, it-might seem that the question as to the right of possession of, or title to, the property was not decided at all, but only that the defendant did not take, or was not in the possession of, the property. The other prayer granted was that there was no other evidence offered legally sufficient to entitle the plaintiff to recover. This covered all the possible grounds upon which the plaintiff could recover under the issues in the case.

The proof adduced in the case, as appears by the record, covered all the possible defenses under the evidence that was offered, viz: as to the title of Tunis as well as that of Uptegrove; and whether the lumber at the time of the bringing of the suit had been, or then was, in the possession of the Knabes. It therefore appears that several distinct matters were “ in issue under the pleadings and proof upon anyone of which the verdict and judgment could have been rendered, and no extrinsic evidence was adduced in this case from which it can be determined upon which of them the judgment was rendered. If the judgment had been for the plaintiff, the same difficulties would not have been presented, for if such had been the case, the effect of the judgment would have been at most to decide that the right to the possession was in the plaintiff, and upon this hypothesis this case would then be within the rulings in McKinzie v. B. & O. R. Co., 28 Md. 174; and in that case where the pleas being non cepit and property in another, it was held that the pleas imposed upon McKenzie the onus to prove title in himself, and as he had done so successfully the judgment in 'his favor operated as an estoppel between the same parties. The Court in its opinion, in this ⁵²⁹ case, noted a distinction between the facts before them and those presented in Warfield & Mactier v. Walter, 11 G. & J. 83 , where the pleas being the same the verdict and judgment were against the plaintiff.

The Court referring to that case said, “Had the verdict and judgment been for the plaintiffs, the judgment would have been conclusive and operated as an estoppel, because the