Joseph & Bros. v. Schonthal Iron & Steel Co.

McSherry, C. J., delivered the opinion of the Court. This is an appeal from the Circuit Court lor Allegany County. Suit was instituted in that Court by the appellant, the Joseph Joseph & Brothers Co., a corporation formed under the laws of the State of Ohio, against the appellee, the Schonthal Iron and Steel Company of Cumberland, a corporation formed- under the laws of Maryland, to recover damages for an alleged breach by the last-named company of a contract made by it for the purchase of one thousand tons of scrap ³⁹¹ steel rails from the first-named company. The breach consisted in the refusal of the Iron and Steel Company to take 331 tons of the total one thousand tons covered by the contract set up by the appellant.

The declaration as first filed contained two counts and described the material purchased by the Steel and Iron Company as “scrap steel rails free from Switch, frog and guard rails.” Subsequently, an additional count was put in and later on the common counts for goods bargained and sold, etc., were added. After the trial had begun an additional count declaring on a written contract was filed, and the words “free from frog, guard and switch rails” contained in the original counts were, on motion, stricken from the declaration. The appellee, the Steel and Iron Company, pleaded that it was never indebted as alleged; that it never promised as alleged; that it satisfied and discharged the plaintiff’s claim by payment and in addition it put in a plea of set-off to the plaintiff’s claim. Upon the issues joined the case went to trial before a jury, and during its progress there were seven exceptions reserved to the rulings of the Court; and the questions with which we have to deal are set forth in the bills of exception contained in the record.

It will perhaps be more convenient, and certainly it will tend to brevity, if we invert the order in which the questions arise on the record and deal with those presented by the last exception first. The last exception includes the rulings of the trial Court on the prayers presented by both sides for instructions to the jury and also its rulings on several motions made to strike out testimony which had been admitted subject to exception. The fundamental question lying at the root of the whole controversy is: Was there a contract between the parties at all ? Qn the part of the plaintiff, the appellant here, it is insisted that there was and that it is evidenced by certain writings; namely, a sales memorandum dated October 4th, 1901, a letter dated October 5th, another letter dated October 7th, and finally a third letter dated October 10th.

Upon the hypothesis that these writings evidenced the w'hole contract between the parties with respect to the sale by the one and the ³⁹² purchase by the other of one thousand tons of steel scrap rails, the 'first, second, third, fourth, sixth and seventh prayers of the appellant were framed. If that hypothesis be erroneous, the Court below was clearly right, in rejecting those prayers. If the contract was evidenced only by the writtten papers referred to, its construction was for the Court. If it was evidenced partly by .the written papers and partly by parol, then it was for the jury to determine what the contract actually was.

Roberts v. Bonaparte, 73 Md. 191 . Inasmuch as the appellant’s theory was founded on the assumption that the writings alone evidenced the contract, it will be necessary to set out those writings and briefly examine them. It appears that in consequence of a telephonic communication from the Steel and Iron Company to the Joseph Joseph & Brothers Co., transmitted from Cumberland to New York on October 4th, 1901, the latter company forwarded to the appellee on the same date the following sales memorandum. New York, Oct. 4th, 1901.

S. M. No. 306. Messrs, Schonthal Iron & Steel Co., Cumberland, Md. ' We have sold to you (see letter). About 1000 tons scrap steel rails, five feet and up (with the exception of two hundred tons 56 lbs and up, three feet and over), original section 60 lbs and over, at $20.50 gross ton, F. O. B. Cumberland, Maryland. , Terms cash V-S^B-L or order. The Jos.

Joseph & Bros. Company. On the following day the Iron and Steel Company replied in a letter which contains the following paragraph: Cumberland, Md., Oct. 5th, 1901. sjos. Joseph & Bros.

Company, New York. Gentlemen:— We acknowledge receipt of your sales memo. No. 306 dated Oct. 4th, of about 1000 tons scrap steel rails to be five feet and up, none to be less than 60 lbs and as much over as you care to ship in section, with the exception of 200 tons of 56’s and up, of the P. R. R. pattern that was to come off the Central railway of N. J., this 200 tons we agreed take three feet ³⁹³ and over, but there must be none of these rails coming to us that was originally lighter when first rolled than a 60 lb section, these rails to be delivered cash B-L. or order at $20.50 gross ton f. o. b. cars our mills, B. & O. tracks, Cumberland, Maryland. Schonthal Iron and Steel Company.

J. PI. Tatnall, G. M. On the 7th of October the Jos. Joseph & Bros. Co..replied as follows: New York, Oct. 7th, 1901.

Schonthal Iron and Steel Company. Dear Sirs: As to the confirmation of 1,000 tons of scrap steel rails, last sold you, as stated in our contract, 200 tons of these rails are to be 56 lbs and up original section, and over three feet in length; the balance are to be 60 lbs and up, five feet and over in length. As to your remark “as to their coming from the P. R. R. ” this is incorrect, as we expect to ship them from the Southern Ry. This, certainly, is an immaterial point, however.

Yours very truly, Jos. Joseph & Brothers Co. Leonard Joseph, Vice Prest. And on the 10th, the Iron and Steel Company mailed a letter from which the following is an extract: Cumberland, Md. Oct. 10th, 1901. Jos.

Joseph & Bros. Company, New York. Gentlemen: — * * * “We note what you say in regard to the 1,000 tons that the 200 tons of three feet and up in lengths. This we note on the contract which is immaterial to us where they come from but it is understood that they are rails taken up from the tracks and not rails picked up from sidings along the road.

Replying further to yours Oct. 7th, in which you advise that you are going to ship us some heavy rails, weighing 76 and 80 lbs per yard, it will be all right to ship these rails as we can use them in the future. Regarding drafts we will take this up as fast as the cars appear in sight, but you certainly would not expect us to pay drafts and wait a week or ten days or longer, before rails reached Cumberland. We have no desire to hold your drafts at all but will give them just as prompt attention as we can when rails appear in sight. Yours truly, Schonthal Iron & Steel Co., Geo.

H. Tatnall, G. M. ³⁹⁴ It will be observed that if these four papers alone evidence the contract there was no meeting of the minds of the two negotiating parties. There was no consensus ad idem. The sales memorandum states that the appellant had sold to the appellee one thousand tons scrap steel rails, of certain dimensions, “original section, 60 lbs and over.” The appellee’s letter of October 5th, does not accept unqualifiedly the terms contained in the sales memorandum, but on the contrary adds a new condition, namely, that the scrap steel rails were to be of the P. R. R. pattern and were to come off of the Central Railway of New Jersey. In the reply of October the seventh the appellant not only does not accede to this new suggestion, but distinctly declines to do so, for it says in the letter of that date “as to your remark about their coming from the P. R. R. this is incorrect as we expect to ship them from the Southern Railroad.” Up to this point it seems reasonably clear that there had been no distinct agreement as to the pattern of the material or the place from whence it was to come, whilst by the letter of October 10th, the condition as to thz place from which the rails were to come, was waived, a new term ■was injected, because the Iron and Steel Company distinctly stated that “it is understood that” the rails to be shipped are to be “rails taken up from the tracks and not rails picked up from sidings along the road ; ” and it nowhere appears that this new term was ever accepted by the appellant company.

In point of fact this series of letters consisted of propositions and counter propositions and nowhere brought the parties to a distinct and definite conclusion. Various terms were suggested but the minds of the parties ultimately never met, and in this particular, the case isnot unlike that of Johnson v. Corbett, 95 Md. 746 . Again there does not appear tp have been a definite' understanding with respect to the time of payment. The sales memorandum states: “terms, cash vs. bill of lading, or order” which we take to mean that a draft was drawn and attached to the bill of lading and was payable on presentation without reference to whether the material had arrived or.not; whereas in the. letter of October 10th, the following statement appears: “regarding ³⁹⁵ drafts, we will take this up as fast as cars appear in sight, but you certainly would not expect us to pay drafts and wait a week or ten days or longer before rails reach Cumberland.

We have no desire to hold your drafts at all but will give them just as prompt attention as we can when the rails appear in sight.” This proposition varied widely from the time for payment set forth in the sales memorandum. With no distinct agreement as to the time of payment, and with no assent to the new' term suggested in the letter of the ioth in regard to the rails being taken from the main track and not from the sidings, it is impossible to conclude that there was a definite agreement evidenced by these papers. And so the Court ruled when it rejected the appellant’s first, second, third, fourth, sixth and seventh prayers, and its ruling in this behalf is, therefore, free from error. The tenth, or only other rejected prayer of the appellant, asked the Court to instruct the jury that there was no evidence in the case legally sufficient to entitle the appellee to recover upon its plea of set-off and that the verdict upon that plea must be for the appellant.

This is a demurrer to the evidence offered by the defendant in support of its plea of set-off. Evidence was introduced tending to show that some of the rails and other scrap contained in the 678 tons shipped to, and paid for by, the appellee were defective and not fit for use, and there was also evidence tending to show the quantity and the value of that inferior material. The evidence so adduced was competent as tending to prove the set-off. A witness produced by the defendant, the appellee, testified that he had inspected every car load of material consigned to the appellee, and hauled to Cumberland, and that every car which he inspected contained materials of light w'eight, short pieces, switch frogs and guard-rails and that class of material.

This was true not only as respects the cars which had been unloaded and paid for but also of the cars which were rejected and not unloaded. It was also proved that the inferior material contained in the cars which had been paid for was carefully laid aside and marked and that the price which had ³⁹⁶ been paid for it was $634.31. It was further shown by admissions made by an agent of the appellant that the material, “all the material, was not up to the specifications;” and the agent who is said to have made those admissions saw some of the material unloaded and was in Cumberland nearly a month endeavoring to adjust the dispute between his company and the appellee. It was further proved that the same agent stated to the chief clerk of the B. & O. freight office in Cumberland that all the cars refused by the Schonthal Iron and Steel Company did not come up to the specifications.

It was for the jury to say whether the testimony was worthy of credit and by the verdict they rendered they evidently believed that it was true. This evidence being in and tending to prove the issue which it was adduced to establish, it would-have been error had the Court withdrawn it from the considsideration of the jury by the granting of the praye’r we are now considering. Consequently the Court was right in rejecting that prayer. It was contended with much earnestness in the oral argument that the Court should have left to the jury to find the terms of the contract if the whole of the terms of the contract were not evidenced by the writings to which allusion has already been made.

But it must be borne in mind that the Court was not asked by the appellant for such a ruling. On the contrary, the whole theory of the appellant’s case was based upon the hypothesis that the contract was evidenced exclusively by the writings. The Court was under no obligation of its own motion to give an instruction to the jury founded upon the theory that the contract was evidenced partially by writing and partially by parol. Had it been asked to so instruct the jury and had the evidence justified the granting of such an instruction, and had an appeal been taken because of a refusal by the Court to grant it, a* different state of case would