Gill v. Weller

Bartol, C. J., delivered the opinion of the Court. This suit was brought hy the appellee; the declaration contains eight counts; at the instance of-the appellants, the defendants below, the Superior Court instructed the jury that there was no evidence upon which the plaintiff was entitled to recover under the first seven counts. The case was tried and the verdict and judgment rendered ¹³ upon the eighth count, which declares upon the order and acceptance following: “ Granite, Aug. 28th, 1877. Messrs.

Gill & McMahon. Gent:—Please pay Wm. E. Weller or order, two hundred dollars, on Sept. 10th and your note for hal. due on forty thousand Belgian paving blocks, at forty-eight dollars pr. thousand, James Clegg agreeing to deliver you forty or more thousand blocks, on the line of your road on cars, or the place called the Summit. JAMES CLEGG.” “We accept this order when the blocks is delivered.

GILL & McMAHOK” It appeared in evidence that the appellants were contractors for paving West Palis Avenue, in Baltimore, for which they required Belgian blocks, and contracted with Clegg to deliver them. The appellee held a hill of sale of Clegg’s property, and consented to the contract made by the latter with the appellants, provided the payment of the price for the blocks should be secured to him, hence the order was drawn. It further appeared in evidence that 38,300 blocks were delivered by Clegg and received by the appellants before the 10th of September. On the 11th, Weller took possession under his hill of sale of the granite blocks quarried by Clegg, and next day called on the appellants to ascertain the number of blocks that had been delivered and proposed to deliver the balance, when he was informed by the appellants “that they did not now want them, that they had no use for them.” It may he inferred from the evidence that their contract for paving had been broken up; McMahon testified that Weller had taken it away from them, which however was denied by Weller in his testimony. ¹⁴ The appellee directed his men to-deliver at the “Summit” the remaining 1700 blocks, which was done four or five days thereafter; the appellants refused to receive them, their workmen told Weller’s men not to unload the wagons, and tried to prevent them from doing so; the .1700 blocks were “dumped” out upon the ground, there being no cars there at the time in which to put them.

Evidence was offered that the appellee demanded payment and was refused. The exception of the appellants was taken to the ruling of the Superior Court upon the prayers. There can be no doubt of the correctness of the Court’s instruction to the jury considered by itself. It is free from objection,