Dinsmore v. Rice

Constable, J., delivered the opinion of the Court. This is the second appeal to this Court in this, case, the first being reported in 124 Md. 276 . The judgment for the plaintiff having been reversed for errors in an instruction, upon the new trial judgment was entered for the defendant, and an allowance of a counsel fee made to him. The facts in the present record are substantially the same as those appearing in the prior record, and since the opinion in the first appeal stated them, it will be only necessary to restate them briefly.

The apellant is a retail dealer in hay, feed and grain, and the appellee a dealer in horses. The appellant brought suit for the recovery of an amount claimed to be due him for feed furnished the appellee. The appellee admitted the correctness of the account filed with the 'narr., but claimed by way of set-off that the appellant was indebted to him in a sum less than the amount sued for, the same heing the purchase price of a horse alleged to have been purchased by the appellant from him; and paid the appellant the difference between the account and the purchase price of the horse. The only question involved in the trial was whether or not the appellee was entitled to an allowance for the purchase price of the horse.

The amount claimed as a set-off was admitted by the appellant as the agreed price of the horse, and it was also admitted that the horse was perfectly sound. The appellant’s contention was that the horse died in his possession under such a set of circumstances that he was under no obligation to pay for it. Those circumstances were, according to the appellant’s testimony, that the appellant, Dinsmore, went to the stables of the appellee and looked at a horse that Dr. Rolan, a veterinary surgeon, had recommended to ²¹¹ him. The horse, apparently, being suited for the purpose for which it was- wanted and the- price agreed upon, was ordered by Dinsmore to be sent to bis place, on trial, b-ut no definite time was fixed for its acceptance or rejection.

The horse was delivered on Thursday. The following Friday and Saturday were stormy days and the horse was worked for about five hours on the latter day. On the- afternoon of that day, Dinsmore called Rice over the telephone and told him he had not been able to report as to the horse, and said to him: “I have been detained downtown and I will either accept or reject -the horse by Monday, twelve o’clock.” The next day, Sunday, the horse was slightly ill with a cold, and Dinsmore again called Rice and told him that the horse was ill, but that Dr. Nolan had reported it- as- not anything serious; and that Rice had answered: “That is all right, Marion, he can do as much for Mm as I can.” On Wednesday, it was apparent for the first time that the horse was very ill and shortly afterward on the same day, it died from conges tion of the lungs. The contention of the appellee was that it was not a sale on trial, hut that the horse had been purchased outright on the day it was delivered ; and he denied that he had had the conversation testified to by Dinsmore as to reporting on Monday whether or not he would take the horse.

The appellant offered no prayers, but the appellee offered several, two of which were granted by the Court, and it is the first of these which the appellant urges is erroneous and should he the basis of a reversal. The prayer is as follows: “’Even though the jury find that the horse mentioned in the evidence, was delivered by the defendant, Rice, to the plaintiff, Dinsmore, on trial, yet, nevertheless-, their verdict should be for the defendant, if they further find that under all the circumstances of the case, the plaintiff retained the horse for an unreasonable time without giving notice of Ms rejection of said horse to the defendant.” The first judgment was reversed