Furness-Withy & Co. v. Fahey

Stockbridge, J., delivered the opinion of the Court. This is the second appeal in this case. The facts out of which it arises are fully set out in connection with the decision of the prior appeal, reported in 124 Md. 110 , and the case of Furness-Withy & Co. v. Gill & Fisher, 124 Md. 101 . In the first appeal this Court passed upon the pleadings, the refusal of the Court to admit certain evidence, and the instructions given to the jury, and the case was remanded for a retrialj because of the errors pointed out in the opinion referred to, in order that the question of whether the three contracts, dated respectively September 21st, 23rd and Octobr 4th, had or had not been modified by a notification by the appellant and “O. K.” of John T. Fahey & Co., and if those contracts had been modified, then to determine what the contracts between the parties were.

On the second' trial of the 'ease, the pleadings having been completed in accordance with the opinion of this Court, there was left for the determination of the jury, under the stipulation of the parties, only the questions above indicated. As now presented the case comes to this Court upon ten exceptions, reserved to the rulings of the Superior Court upon questions of evidence, none in any way involving the instructions given to the jury, and whether those instructions were correct or not is not now before this Court for consideration. ³³⁵ While the exceptions are ten in number, they all were reserved upon a single theory, so that a seriatim discussion of them is not necessary to a conclusion of this case. By the pleas which had been filed, the defendant set up as a defense to the plaintiff’s recovery, under the three several contracts of September and October, that there had been a parol modification of them, and that modification consisted in notifications on December 2nd designating the ship “Amana” as the particular vessel to carry the grain contracted to be transported by the original contracts; these notifications were in practically identical form, as follows: “Baltimore, Dee. 2, 1911. “Mess. John T. Fahey & Co., “City. “Dear Sir — We beg to name steamer ‘Amana’ expected to sail for Eeith Dec. 27th, for 3,000 quarters grain. “Engagement of Sept. 21, for 3,000 quarters, eon- ■ tract No. 59. “Respectfully, “Dresel, Rauschenberg & Co., “Signed) “Agents. “OK. “Per A. F. Sidebotham. “John T. Fahey & Co.” Of such notice it was said in Furness-Withy & Co. v. Gill & Fisher, 124 Md. 107 : “The effect of this was to render more definite, in one particular at least, the terms of the original contract; and the assent to- it on the part of the shipper amounted to a modification of the original contract by mutual consent at a time when it was perfectly comper tent for the parties so' to do-, and substitute a particular ship, in place of an. open contract which wo-uld be gratified -by the sending of any ship of that line.” That language was- predicated upon the assumption, that the words used had a definite, well-understood meaning, and that it was the same in the minds of both parties to the ³³⁶ contracts.

If such was the case then the jury would have so found, but if in point' of fact there was-not such common understanding, then there had been no- meeting- of the minds, and therefore no modification of the original contracts. -This was-a' question- of - fact-tb- be determined by-a-jury,.-not one'of law for the--Court. -The questions put To-'the-witnesses-to which objections were made,-and to-the-admission of answers to which the exceptions were-reserved- sought in one way- or another to show what'-the understanding of the parties was with'-reSpect:to the nomination of December- 2nd.- 'It must be borne'in-mind that the suit- as-instituted declared on the original contracts, and that the -alleged-modification of-them had been set up by the defendant, thus casting upon it the burden of proving such modification. The appellant now claims that in showing the understanding of the meaning of the notification ,of December 2jid and the “O. K.” of the plaintiff, thereon, the plaintiff is restricted to evidence of acts, and cannot show by parol testimony, what that understanding was,