Cromwell v. Chance Marine Construction Co.

Briscoe, J., delivered the opinion of the Court. The controversy, in this case, is over the sale of a motorboat. The declaration is in assumpsit, upon the usual common counts. The defendant pleaded the general issue pleas, and the trial in the Court' below resulting in a judgment for the defendant, the plaintiff brings this appeal.

At the trial s single exception was taken and that was, to the ruling of the Court, at the close of the plaintiff’s testimony, in granting the defendant’s prayer, withdrawing the case from the consideration of the jury, and directing a verdict for the defendant. The sole question presented, on the appeal, is whether the Court below committed an error in granting the defendant’s prayer, and this requires a review of the evidence, disclosed by the Record. The Record is a short one, and there were only two witnesses examined in the case. The testimony is somewhat brief and the plaintiff’s testimony is the only material evidence in the case.

It appears, that the plaintiff who resides upon the Severn River, in Anne Arundel County, sometime in the year 1916, purchased of the defendant, a motor-boat, for the sum of $376. Prior to the contract of sale, it was agreed that a small engine which was then in the boat, should be removed and what was called a Hubbard engine was to be installed in its place. ¹⁰⁷ It further appears, that on the 25th of February, 1916, the plaintiff paid the sum of $210.00, on account of the boat and engine, hut with the understanding that if a Hub-hard engine was not put in it, he did not want it. The following letter, introduced as evidence in the case shows the contract and understanding between the parties. “The Chance Marine Construction Company, Designers and Builders of Boats, Office and Shipyard, Severn Avenue, Eastport, Md. Annapolis, Md., Eeb. 23, 1916. Mr. J. H. Cromwell, Forrest and Front Sts., Balto., Md. Dear Herbert: Confirming telephone conversation with you regarding the Caughy boat, will say that we will let you have the boat at $375.00 as per your request.

As you understand, the hull does not belong to us, wo will ask you for your check for $210; we will then take the engine out and put in the 12 H. P. Victor motor in its place. The balance payable when the boat is delivered. You will understand that we could not make any change in the boat until it is paid for, as the money has to he turned into the estate of the owner. Yours very truly, Caryl H. Bryan.” On the 25th of February, 1916, the plaintiff replied to the foregoing letter, as follows: “Homestead Park Product Company, Forrest and Front Streets, Baltimore, Feb. 25, 1916.

The Chance Marine Construction Co., Annapolis, Md. Gentlemen: I am enclosing herewith my check for $210.00 to apply on account of the Seabury boat and engine. ¹⁰⁸ Your attention is called to the fact that before I agreed to purchase this outfit or even before I made an offer for same in your office last week, your Captain Baker represented this engine to be one manufactured by the Hubbard Motor Company, and it was on the strength of this representation that I made the above offer and finally agreed to purchase. In the meantime I have been familiarizing myself with the different parts of the Hubbard Motor, and after talking with your Mr. Bryan this afternoon I ran across some information that led me to believe that it was possible that your motor was not a Hubbard machine, but one manufactured for the Fairbanks Company by another concern and with which they have experienced a large amount of trouble. I have just finished talking with your Captain Baker on the phone and he assured me that .the motor is a Hubbard, and if such is the case all is well and good, and I want you to go ahead with the work as promptly as you can, but on the other hand I want you to be sure of this fact before you do go to work on it, because if it is not a Hubbard