Dimmick v. Hendley

Burtíe, J., delivered the opinion of the Court. The appellees on this record recovered a judgment in the Superior Court of Baltimore City for $1,395.46 against the appellants. This is the defendants’ appeal from that judgment. ⁴⁶² It appears from the record that the parties to the suit entered into a written contract by which (the plaintiff agreed to sell and the defendants to buy from the plaintiff five thousand tons of 48 hour “Orr” West Virginia Furnace Coke to be shipped by the plaintiff as directed by the defendants. Twenty-five hundred tons were to be shipped in the month of November, 1909, and twenty-five hundred tons in the month of December, 1909, each month’s shipment to be paid for in'cash on the 20 th day of November and December, respectively.

The plaintiff delivered to the defendants under the contract 2,019.20 tons of coke in November, 1909, and upon the allegation that the defendants repudiated their contract and refused to receive or direct the shipment of the remaining coke, (this suit was brought for the recovery of damages for the breach of the contract. The coke mentioned in the contract meant coke burned forty-eight hours in the ovens of the “.Orr” Coal and Coke Company, a West Virginia corporation, for use in iron furnaces, and the price to be paid by the defendants to ‘the plaintiff was $2.20 per ton of 2,000 pounds, f. o. b. ovens. By a decree of the Circuit Court of the United States for the Northern District of West Virginia, passed in February, 1909, the Orr Coal and Coke Company, .the manufacturer of the coke specified in the contract, was placed in the hands of William C. Brown and William G. Conley as receivers, who were authorized by the decree appointing them to take charge of the property and assets of the company, and to operate and manage its business through their superintendents, managers and agents. There is evidence in the record tending to show that the plaintiffs had a contract with the receivers by which they were to deliver to the plaintiff the coke mentioned in the contract at the rate of $1.65 per ton.

In view of some of the questions presented by the record, it must be kept in mind that the plaintiff was not the owner, manufacturer, or producer of the coke contracted to be sold nor was it in their possession or control; but that under the ⁴⁶³ terms of tlie contract it was to be produced by the Orr Coal and Coke- Company from which the plaintiff was required to procure if. The defendants accepted 2,019.20 tons on account of' the November delivery, and the plaintiff sold and delivered for account of the defendants 480.81 tons to the Wharton Furnace Company at $2.15 per ton, and charged them with five cents per ton, being the difference between the contract price and the sale price, the total difference being $24.05. T>y the defendant’s third prayer, the Court instructed the jury that since it appeared by the plaintiff’s evidence that the defendants accepted and paid for all the coke they contracted to take in November, 1909, less the amount sold to ihe Wharton Furnace Company, the defendants were not entitled to recover more than $24.05, with or without interest in the discretion of the jury because of the defendants’ failure to take the whole 2‘,500 tons in November, 1909, as contracted for. This instruction, which was properly granted, removed from the case all question as to 1he November delivery, and left for determination the sole question whether the defendants were liable under the contract for their failure to accept the 2,500 tons which were to be delivered in December, 1909.

In an action for damages for the breach of an executory contrae! of this character, it is essential for the plaintiff to prove that he was able and willing to deliver the goods according' to the terms of the contract, and that performance on his pari was prevented by some act or default of the defendant. This principle is elementary, and is accepted as the law of the case by both parties to the controversy. The record presents for our consideration: First, the rulings of the court on the admission or rejection of evidence; second, the legal sufficiency of the evidence to take the case to llie jury; third, the proper rule as to the measure of damages to he applied under the facts. The second and third questions arise under the rulings upon the prayers and on ⁴⁶⁴ tbe overruling of tbe defendant’s special exception to tbe granting of tbé plaintiff’s first prayerfourth, tbe propriety of an oral opinion delivered in tbe presence of tbe jury by tbe presiding judge in passing upon tbe prayers; fifth, tbe sufficiency of tbe declaration which was attacked by tbe plaintiff’s prayer which referred to the pleadings.

There are eight bills of exceptions to tbe rulings on evidence. We find no reversible error in (the first, second, third, fourth, fifth and eighth exceptions. The plaintiff offered in evidence three letters, one dated January 7th, 1910, from the defendants to AYilliam Gr. Brown, who had been one of the receivers of the Orr Coal and Coke Company; Mr. Brown’s reply to that letter addressed to the defendants, and dated January 20th, 1910; and a letter to the defendants dated January 24th, 1910, and J. M. Orr to whom Mr. Brown had referred the defendants for the information sought in their letter to him.

In the letter of January 7th, 1910, the defendants admit the contract with the plaintiff to take from the 5,000 tons of coke at .$2.20 a ton to be delivered 'in equal tonnage in. November and December, and they admit that they had concelled their contract with the plaintiff. What they wanted to know was whether there was a clause in the contract between the receivers of the Orr Coal and Coke Company and C. W. Hendley Company, the plaintiff, under which when the plant was sold and the receivership discontinued, Hendley Company’s contract was cancelled. They asked Mr. Brown for information upon this point.

Mr. Brown’s reply referred the defendants to J. M. Orr, who was the superintendent of the plant during the receivership. Orr’s letter to the defendants stated that there was nothing in the contract about cancellation. The admissions of the defendants we have referred to. clearly made the letter of January 7th, 1910, admissible, and it does not appear that the defendants could have been injured b} Orr’s letter, as it is not claimed by’ them that any clause of cancellation was contained in the contract referred to. ⁴⁶⁵ Before passing on the remaining exceptions to the rulings on testimony, it is proper to refer to certain .facts disclosed by the record. The greater number of these exceptions arose out of an effort on the part of the plaintiff to show their ability to perform the contract.

On November 26th, 1909, the receivers of the Orr Coal and Coke Company sold the property to William A. Stone, and this sale was ratified by the Court, and Stone took possession on the first of December, 1909. At that date all the coke at the plant had been disposed of by the receivers. On the 29th of November, 1909, there was 1000 tons of coke loaded upon cars at the plant, which the receivers were anxious to dispose of. This coke was offered to the defendants on November 29th; but they declined to receive it, claiming properly that they were under no obligations at that date to take the coke on account of the December delivery. - This coke was sold to another party.

J. J\l. Orr, who was the manager of the plant during the receivership. occupied that position under Mr. Stone until January 1st, 1910, and it was upon Ms testimony and that of, Stone that the plaintiff principally relied to take the case to the jury. The plaintiff was under no obligation under their contract with the defendants to buy the coke from the receivers. It was no concern of the defendants from whom the plaintiff bought the coke so long as they were able to deliver the ’character of coke called for by the contract.

If Stone was willing to let them have the coke the defendants had no reason to complain. If they could have gotten the coke from Stone at an advanced price it was their right to do so, although their gain under the contract would have been to that extent reduced. It was, therefore, proper for the plaintiff to show that they could have gotten coke from Stone and at what price, and for this purpose it was .permissible for them to prove that after Stone had bought the property there was an arrangement by which he .was to fill the contract made by the receivers, and there was therefore ⁴⁶⁶ no error in admitting that character of evidence, which constitutes the second exception. The third exception is not 'pressed by the appellants.

The question was as to the price 'to be paid Ifendley and Company by the defendants. The question was not answered, although no valid objection to such evidence could be made. Eor the reason stated in passing on the second exception there was no error in the ruling on the fourth as that exception presents substantially the same question. We would not reverse for the admission of the- evidence embraced in the fifth exception although ' that testimony ought not to have been admitted, but standing alone we would not pronounce it reversible error. -There was, however, serious error in admitting the letters ■embraced in the sixth and seventh exceptions.

These letters were written by J. M. Orr, a stranger to the defendants, to the plaintiff in this case. One is dated December 1-lth, 1909, and the other December 18th, 1909. In both of these letters Orr declared his ability to deliver to the plaintiff •■sufficient amount of coke to complete their contract with the' defendants. He also stated in the letter of December 11th. 1909, that he had authority from William A. Stone and Company to place with the plaintiff during the next year 2500 to 4000 tons of coke.

We are of opinion that unsworn declarations of this character bearing upon the essential and. disputed question in the case as to the ability of the plaintiff to' make the deliveries under the contract must of necessity have prejudiced the defendants case. There was no error in the eighth exception. It was taken to the refusal of the Court to permit a witness to repeat his former testimony that a quantity of coke was sold to the '■Central Iron and Steel Company at $2.20 a ton. In the view we take of the case we do not find it necessary - to discuss the ninth exception, which was taken to a lengthy oral opinion delivered by the judge in passing upon the prayers. 2.' This brings us' to the rulings on the prayers.

The 'plaintiff’s first and second prayers were granted. By the first prayer the jury were told that if they found.that the 'defendants signed and delivered to the plaintiff the paper ⁴⁶⁷ writing dated October 25 th, 3909, and offered in evidence, and tliat the plaintiff signed and delivered to the defendants the letter or paper writing dated October 27th,. 1909, and also offered in