Eastern Shore Brokerage & Commission Co. v. Harrison

Thomas, «T., delivered the opinion of the Court. This appeal is from, a judgment of the Circuit Court for Queen Anne’s County, and a motion has been filed by the appellees to dismiss the appeal on the ground that the record was not transmitted to this Court within three months from the date of the appeal. The docket entries show that the j udgment was entered on the 16th of May, 1921, and that the order for appeal was filed on dune 29th, 1921, that- by several orders, of the court below, regularly passed, the time for “filing and signing the exceptions” was extended to the 30th of September, 1921, and that the bill of exceptions was filed on September 28th, 1921. The record reached this Court on October 15th, 1921. ⁹⁴ and Fred R. Owens, Esq., one of the counsel for the appellant, has filed an affidavit stating that the bill of exceptions was presented to the trial judge at Ohestertown about the 21st of September; that the judge signed the exceptions on the 24th of September, and mailed the bill of exceptions to him at Denton, and that he immediately remailed it to the clerk of the circuit court at Centreville on the 27th of September, 192Í; that he had previously made satisfactory arrangements with the clerk for the payment of the cost of the record, and that it was not possible for the clerk, after receiving the bill of exceptions, to prepare the record and transmit it to this Court within the three months from the date of .the appeal.

As the bills of exception were prepared by the appellant, signed by the trial judge, and filed within the time allowed by the order of the court below, and the appellant had arranged to pay the cost of preparing the record, it cannot be said that the delay in transmitting it to- this Court was due to the appellant or his counsel, and the motion to- dismiss the appeal must therefore be overruled. Cochrane v. Little, 71 Md. 323 ; Duvall v. Md. Elec. Rys. Co., 114 Md. 298 ; Snowden v. State, 133 Md. 624 ; Hall v. Albertie, 140 Md. 673 .

The appellees, Orlando- Harrison and George A. Harrison, co-partners trading as “Harrison’s Nurseries, J. G. Harrison & Sons,' Proprietors,” were large growers and shippers of fruit trees-, fruit, vegetables, &c., with an office at Berlin, in Worcester County, Maryland. The appellant, The Eastern Shore Brokerage and Commission Company, a Maryland corporation, was engaged at Preston, in Caroline County, Maryland, in selling canned goods for packers on commission, and in the summer of 1919 had a contract with Edgar R. Loweree, who was operating a earning factory at Willards, in Wicomico County, Maryland, under the name of the- Willards Canning Company, by which, in consideration of supplying the canning company with cans and other materials, the appel ⁹⁵ janf was to receive tlie entire pack of the canning company for sale for a commission of five per cent. On August 12th or 18th, 1919, the canning company, through the son of Edgar R. Loweree, applied to the appellees for several “truck loads or more” of peaches, and was. referred to G. Líale Harrison, the treasurer and sales manager of the appellees. Mr. Harrison told him that, as the canning company was a new concern, he could not let him have the peaches unless the company deposited the money to pay for same or gave the appellees a satisfactory “guarantee.” Mr. Loweree said that the canning company “was closely affiliated with the Eastern Shore Brokerage and Commission Company at Preston,” of which Mr. Walter M. Wright was president and James A. Colbert was sales manager, and Mr. Harrison replied that he had never heard of the brokerage company, hut did know “Walter M. Wright personally,” and that if he, Mr. Loweree, could make proper arrangements with the brokerage company the appellees “would try to do some business with Mm.” The following day the appellees received a telephone call from the brokerage company at Preston and, when Mr. G. Hale Harrison answered the call, he was told that it was the brokerage company and that Mr. Colbert was speaking.

In the telephone conversation that followed, Mr. Colbert, after learning from Mr. Harrison what the appellees had to sell, told him that the brokerage company was interested in the canning company, and in pnrchasdng “raw materials” (fruit, &c.) for the canning company; .that the brokerage company had the exclusive right to sell the pack of the canning company, and wanted to get fruit, &c., for the canning company to pack so as to increase the sales of the brokerage company, and wanted the appellees to furnish fruit to the canning company. At the close of the telephone conversation, Mr. Harrison asked Mr. Colbert to have the brokerage company confirm his statements by letter, and accordingly, on the 14th of August, 1919, the appellees received the following letter from the brokerage company: ⁹⁶ “The Eastern. Shore Brokerage and Commission Company. “Reliable Service — Code: Armsby. “Walter M. Wright, James A. Colbert, “President. Mgr. of Sales. “Preston, Maryland, Aug. 14, 1919. “J. G. Harrison & Sons, “Berlin, Maryland. “Gentlemen: “With reference to the telephone conversation we had with your Mr. Hale Harrison today, we hereby guarantee the payment of 1,000 baskets of peaches sold to Willards Canning Company at Willards, Maryland, at 50c. per basket. “Por your information, wish to say that we are handling this pack exclusively, and that all their goods go through our hands, and we will see that you are paid for any goods you sell them, but would like you to keep us advised as to , the quantity and the amounts so that we can keep some check on what they are doing. “Tours very truly, “The Eastern Shore Brokerage and Commission Co., “JC — AL J. A. Colbert, Mgr. of Sales.” Relying upon this letter of the brokerage company, the appellees, from August 14th to October 3rd, 1919, sold the canning company peaches, apples- and pears to the value of $4,952.73, and mailed to the brokerage company, on the day of shipment or delivery, a copy of the bill of each sale of such fruit.

On August 23rd and October 15th, 1919, the appellees received checks to the amount of $1,510 on account of the fruit sold the canning company, leaving’ a balance due of $3,442.73. The fruit canned by the canning company was, by direction of the brokerage company, shipped by the canning company to the Terminal Warehouse in Baltimore^ and the receipts for same turned over to the brokerage company, ⁹⁷ and was still “in storage” in the warehouse at the time of the mal in the court below. After repeated demands, on the canning company and the brokerage company for payment of the balance due, this suit was instituted by the appellees against the brokerage company in the Circuit Court for Caroline County, and was subsequently removed to the Circuit Court for Queen Anne’s County for (rial. • The narr. contains the common counts in assumpsit and a special count on the contract contained in the letter of August 14tli, 1919, and the only pleas filed by the defendant were “never was indebted as alleged” and “never promised as alleged.” During the trial, which resulted in a verdict and judgment for the plaintiffs, the defendant reserved twenty-eight exceptions, all of which are to rulings of the court on the evidence, except the twenty-eighth, which is to the granting of plaintiffs’ second prayer, the rejection of the defendant’s nine prayers, and the overruling of defendant’s special exception to plaintiffs’ second prayer. As the special exception is not in the record it will not be necessary to refer to it again.

Til their brief filed in this Court, counsel for the appellant say: “The record contains twenty-eight bills of exception — twenty-seven being taken to rulings on the evidence, and one to rulings on the prayers. (Nevertheless, the main questions involved are few and simple. They may be classified as follows: “(1) The question of the construction of Colbert’s letter, i. a., whether it was ever intended to create a legal guarantee without restriction, qualification or limit. “(2) The question whether the alleged guarantee, if it was given, was ultra vires of the defendant corporation, and, so, unenforceable. “(3) The question whether Colbert acted within the scope of his authority, as agent of the defendant, in giving the alleged guarantee. ⁹⁸ “(4) The question whether evidence offered by tbe appellant bearing upon the scope of Colbert’s authority ought not to have been received. “(5) The question whether notice of sales to Willard’s Canning Company mailed to defendant was sufficient, though never received.” 1. Taking up these several questions in the order suggested by the appellant, we find no support in the letter itself, or in the circumstances under which it was written, to warrant the contention of the appellant that it was not intended as an “absolute guarantee beyond the 1,000 baskets” of peaches mentioned in the first paragraph.

The language of the second paragraph is equally as explicit. “We will see that you are paid for any goods you sell them” is a clear, definite and unambiguous statement of the undertaking of the appellant in reference to “any goods” the appellees might sell the canning company. It is conceded by counsel for the appellant that the words quoted, if they stood alone, would “be sufficient to indicate an intention to assume the obligation of a general guarantor,” and we think that when they are read in connection with the rest of the letter any possible doubt as to their meaning is removed. The first paragraph of the letter refers only to the 1,000 baskets of peaches, which Mr. Loweree’s son had tried to purchase a day or two before, and if the appellant had intended to confine its obligation to those peaches there would have been no occasion to refer to other sales to the canning company. But what the appellant desired was to secure from the appellees the fruit needed by the canning company for its factory, and which the appellees had refused to furnish without a deposit to cover the price, or a satisfactory “guarantee” of payment, and it was to meet that requirement of the appellees that the second paragraph of the letter was written. 2.

The second question stated by counsel for the appellant is not presented by the record in this case. The special count in the na/rr. is upon the contract contained in the letter of ⁹⁹ August 14th, 1919, which is set out in the declaration, and the only pleas filed by the defendant were, as we have said, “newer indebted as alleged” and “never promised as alleged.” It is said in 10 Cyc. 1156, “The defense of ultra, vires is special and is not. available under a general denial, but must be specially pleaded and proved.” This rule, to the extent of requiring the defense to be pleaded specially, was approved in Conouringo Land Co. v. McGaw, 124 Md. 653 , where Onikk Judge Boyd said: “The general rule seems, to be well estaidished that the defense of ultra vires must be pleaded specially,” and many authorities in support of the rule are cited in Hagerstown Brew. Co. v. Gates, 117 Md. 348 , where this Court quotes from .10 Cyc. 1155 the statement'of Judge Seymouk 1). Thompson* that, “A general presumption of right-acting attends corporation*», the effect of which is to placo the burden of proving that a. contract Annie or an act doin' by a corporation was ultra vires upon liim who alleges that fact as the foundation of his action or defense.” While in the. case of Hagerstown Brew.

Co. v. Gates, supra, the Court was careful to say that it was not “to bo understood as holding that, in every case, regardless of the nature of the contract or the character of the corporation, the act of the Corporation relied on will bo presumed to be within its corporate powers,” in the case at bar, where the contract sued on avus made to promote the business of the appellant and for its benefit, and, where the defense of ultra vires was not pleaded specially, and the certificate of incorporation of the appellant was not offered in evidence, we cannot hold that the appellant