Kahn v. Carl Schoen Silk Corp.

Digges, J., delivered tbe opinion of tbe Cburt. Tbis appeal is from .a judgment obtained in the Superior Court of Baltimore City by tbe appellee (plaintiff below) against the appellant (defendant below) for 'the sum of $1701.15. Tbe declaration is in assumpsit and sought to recover tbe difference between tbe contract price of merchandise sold by tbe appellee to» tbe appellant and tbe re-sale price of tbe same merchandise when sold after tbe appellant bad refused to accept delivery. Tbe record contains twenty exceptions, nineteen to' tbe rulings on evidence and tbe twentieth' te» tbe ruling on tbe prayers.

At the close of tbe testimony in tbe case there were seven prayers offered by tbe plaintiff and two> by tbe defendant. Tbe court rejected all of tbe offered prayers with the exception of the plaintiff’s fourth prayer, which was granted after modification by the court. One of tbe prayers offered by tbe defendant, designated in tbe record as defendant’s third prayer, is a general ⁵¹⁹ demurrer to the evidence, asking the -court to instruct the jury that there is no evidence in the case legally sufficient to entitle thg plaintiff to recover and their verdict must be for the defendant. The other prayer offered by the defendant is as follows.: “The defendant prays the court to instruct the jury that there has been offered no evidence in this case legally sufficient to entitle the plaintiff to recover under the pleadings in this ease and therefore their verdict should be for the defendant.” This Court has been called upon in many recent eases to p-as-s upon prayers- of similar form to the defendant’s fourth prayer, and the result of our decisions in those oases is that where the prayer is intended as a variance prayer it is properly rejected because it does not comply with the provisions of the Act of 1914, chapter 110, now codified as section 9-A of article 5 of jhe -Code of Public General Laws, decisions to this effect being found in .a number of eases, beginning with Western Union Telegraph Co. v. Bloede, 127 Md. 344 , down to- and including Caltrider v. Weant ( 147 Md. 338 ), being No. 44 of the present term of this -Court, in which last case the preceding eases deciding this question are collected and cited.

It is evident in the present ease that this fourth prayer was intended to- be a variance prayer, for the reason that the defendant’s third prayer is a general demurrer prayer and the defendant accomplishes by that prayer everything which he .could accomplish by his fourth prayer, unless it was intended as a variance prayer, and as stated, if it was so intended, it was properly rejected. What was said in this respect by the -Court, speaking through Judge Offutt in the ease of Balto. & O. R. R. Co. v. Walsh, 142 Md. 230 , is directly applicable to the present case. The plaintiff’s fourth prayer, which was granted as modified by the court, is an instruction as to the measure of damages. The exception taken to the ruling on the prayers, therefore, presents two questions for our determination: Eirst, was there any legally sufficient evidence in the whole case entitling the plaintiff to recover; and, second, if the plaintiff is entitled to ⁵²⁰ recover, does the plaintiff’s fourth prayer, as modified by the court, state the correct rule .as to tire measure of damages?

The denial of the plaintiff’s right to recover is based upon the theory that section 25 of article 83 of the Oode of Public General Laws*, -which is a provision contained in the Uniform Sales Act, -and -which is substantially a. re-enactment of the provisions of the statute of frauds relating to the sale of personal property of the value- of fifty dollars and over, prevents a recovery in this case, in that the provisions of the statute have not been complied with. The provisions of section 25 of article 83 are- .as follows: “A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upward shall not he enforceable by action, unless the buyer shall accept part of the goods or choses in action so contracted to be sold, or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale he signed by the party to he charged or his agent in that behalf. (2) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured or provided, or fit or ready for delivery, or some act; may be requisite for the- making or completing theroef, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, the provisions of this section shall not apply.” The answer to- this contention, by the -appellee, is that, the goods- in question having been manufactured by tbe appellee (the seller thereof) especially for the appellant (the buyer thereof) and not being suitable for sale to others in the ordinary course -of the appellee’s- business, the provisions of the statute quoted -do not .apply; and, second, tlnif if ⁵²¹ the statute does apply, its requirements have been met. There is no1 question, iu this ease, that nothing was given iu earnest to hind the contract and that the delivery of the merchandise was not accepted by the buyer, hut it is contended by the appellee that there has been such note or memorandum iu writing of the contract of sale, signed by the party to he charged, as constitutes .a compliance with the statutory requirement.

Iu order to determine these questions we must examine the evidence as disclosed by the record. 'The appellee is a manufacturer of silk dress goods for ladies’ wear, silk shadings and men’s neckwear silk, with factories located in Pennsylvania, New Jersey and Rhode Island and sales rooms at 260 Eourth Avenue, New York City. The appellant is a firm located in Baltimore City, Maryland, engaged in the manufacture and sale of silk neck-wear. In the latter part of Eebmary or early in March, 1920, Jack Cold, an employee and salesman of the appellee, called a.t the appellant’s place of business in Baltimore and exhibited samples or “swatches” of silk, with the purpose of selling to the appellant silk from which the appellant would manufacture ties for sale to its trade, and that the appellant might select the various patterns, designating the same .and the quantity of each pattern so selected. As a result of the conversation between the salesman and the appellant and the conclusion then reached by them, an order was made out and reduced to writing by the salesman, which contained the name and address of the appellee as being the seller, the date, March 11, 1920, the name and address of the appellant, “Terms, as before,” “Order No. 6175,” “Delivery, goods f. o. b.

New York: May, Jnne, July 20,” “Credit and delivery of goods subject to approval of Peierls, Buhler & Co., to whom all bills are payable”; and then followed twenty-two sets of numbers representing the design or pattern of silk ordered, with.the number of yards set 'opposite each pattern .and the price per yard opposite the number of yards. The salesman, Cold, then took this memorandum and ⁵²² .turned it in to the general manager of the appellee in regular course. The appellee, by its general manager, examined the order, and after determining that the appellee could .make delivery of the merchandise mentioned in the order at tire time specified therein, mailed a copy thereof, initialed ■by Mm, to the appellant, which copy was produced at the trial by the defendants and forms a part of the record. ‘Subsequently 'the following correspondence took place between the appellee mid appellant: ’ 1 “April 30, 1920. “The Resisto Mfg. Co., “37 S. Hanover St., “Baltimore, Md. “Gentlemen: “It being our desire to assist our customers as much as possible, we would suggest that you accept samples on the goods you have coming from us for fall, so that you may he able to get out your salesmen’s lines on time, instead of waiting for the goods to be delivered.

These samples could either he additional or deducted from your order, whichever you may see fit to do. We would prefer to deduct the yardage from the goods we have to deliver. “A few of our accounts have suggested accepting one five-yard sample of each range, which would be sufficient for them to show to their trade. “Kindly let us know by return mail what you think of our suggestion, and also what samples you would want in case you would need any samples for your salesmen’s lines. “Very truly yours, “Carl Sehoen Silk Corporation.” “WS :0.” “May 4th, 1920. “Carl Sehoen Silk Corp., “Eourth Ave. at 21st St., “New York, N. Y. Attention: Mr. Schwab. “Dear Sir: “Yours of the 30th ult. regarding sample lengths; ⁵²³ we were delayed in answering same sooner, and it was under consideration until today. We appreciate very much your good faith regarding sample lengths, but we wish to state, however, that to our great sorrow, that according to reports that we get from our salesmen on the road, that our trade is not interested in higher priced goods. The highest priced goods that we can sell is up to $16.50 per dozen, and for this price merchandise we cannot use goods higher than $3.50 per yard.

Therefore, we would consider it a favor if you will cancel the order we have with you above $3.50 per yard. If you have any cheaper class of goods, we no doubt would be interested in same, and will gladly buy from you at any time samples would be submitted to us. As you know well, the high cost of labor and the high cost of trimmings and everything attached to the manufacturing of the scarf, we cannot afford to put in any higher price goods in $16Í0 scarf per dozen, than $3.50 goods. “We hope you will appreciate the fact of the well meaning of the above. Thanking you for past favors, we beg to remain, “Respectfully yours, “Resisto Manufacturing Company. “HO.

OS.” “May 5th, 1920. “The Resisto Mfg. Co., “37 So. Hanover St., “Baltimore, Md. “Gentlemen: “Your favor of May 4 to hand, requesting us to cancel all goods above $3.50 per yard, and in reply beg to say that it is impossible for us to accede to your request. These goods are all in process of manufacture.

We have purchased the raw material for same, and have accepted your order in good faith. “In looking up your order, I find that you have very short lengths ordered above $3.50 per yard. They are only 6x5 yards, and to a concern like yours, I feel sure you will find ready sale for- these short lengths. In fact I remarked to Mr. Gold that you ⁵²⁴ •would find it necessary to duplicate these numbers, as they are all very beautiful and desirable patterns. “We believe that we have been more than considerate in the past few weeks with your account, and have showed you our intention to meet you more than halfway. “In regard to your fall order, we cannot accept your. cancellation, and have no doubt that if you reconsider this matter you will find good use for the merchandise you have coming from us. “Very truly yours, “Carl Schoen Silk Corporation. “WS :0” ' “May 7, 1920. “Carl Schoen Silk Corp., “Fourth Ave., at 21st St., “New York, N. Y. “Attention: Mr. W. Schwab. “Gentlemen: “Your letter of the 5th to hand, and we are very much surprised at the tone of your letter. You know well enough that wte will not pay $5.50 per yard for silks and sell same for $16.50 per dozen, which was explained to you in our previous letter.

Therefore, we are compelled to cancel our entire order with you. We will not accept one yard of goods from you; therefore, you need not send any merchandise, as we will positively refuse to accept same. “Yours very truly, “Resisto Manufacturing Company. “LK.CS.” “May 13th, 1920. “Resisto Mfg. Co., “37 So. Hanover St., “Baltimore, Md. “Gentlemen: “We have your letter of May 7 to hand, and also a notice from the American Railway Express Company that you have refused our shipment of the 5th inst.

Unless we receive an answer from you by return mail that it is your intention to accept these goods, ⁵²⁵ we shall take this matter up with the Board of Governors of the American Tie Silk Association for their action. “We took your order in good faith, and the goods will be delivered on time, and we see no reason at all for your cancelling your order with us. “Awaiting your prompt reply, we remain, “Very truly yours, “Carl Sehoen Silk Corporation. “WS :0” • “P. S. — Kegarding the goods which you returned to us, we have refused to accept same, and they are lying at the express company at your risk.” “Carl Sehoen Silk Corp., “Fourth Ave. at 21st St., “May 18, 1920. “New York, N. Y. “Attention: Mr. Schwab. “Gentlemen: “Yours of the 13th instant noted, and in reply to same, as previously written you, we found that we could not possibly sell ties above $16.50 per dozen, and we would not have any outlet for the goods, and therefore cancelled same. We think you appreciate and realize our position, and considering present conditions we cannot possibly use them. “Yours very truly, “Kesisto Manufacturing Company. “JS.CS.” “May 20, 1920. “Resisto Mfg. Co., “31 Hanover St., “Baltimore, Md. “Gentlemen: “Your favor of May 18 to hand, and in reply beg to say that we cannot change from the position taken in our letter of May 13th. “If it were possible for us to cancel our raw material contracts, and purchase silk at the present quotations, we would gladly reduce the prices op. your ⁵²⁶ order, or cancel the goods. We must stand by our contracts, and our customers must do the same.

For that reason we are unable to cancel your order, and in case you should refuse shipment, we shall be compelled to take this matter up with the Arbitration Board of tbe Tie Silk Association. “As a suggestion on my part, 1 think it would be a good idea for your Mr. Kahn to come to New York and talk this matter over. I believe a great deal more can bo accomplished by a heart-to-heart talk than by writing letters. “Very truly yours, “Carl Schoen Silk Corporation. “WS :0.” The record further discloses that the appellant had purchased .merchandise from the appellee for a number of years previous to' 1920. It is not denied by the appellant that the correspondence between tbe parties had reference to the goods mentioned in the order taken by the salesman in February or March, 1920, and produced by the appellant at .the trial. While -the appellant did not sign the order for these goods, a reading of this correspondence indicates that the appellant recognized that the order had been given by them to the appellee, an<^ in their letter under date of May 4th they say: “We would consider it a favor if you will cancel the order we have with you above $3.50 per yard”; and again, in their letter of May 7, 1920, they say: “We are compelled to cancel our entire order with you.” We think that this correspondence constitutes a compliance with the provisions of the state requiring 'a memorandum in writing signed by the party to he charged.

By these letters they clearly and unequivocally recognize that an order had been given by them, as indicated by the expression above quoted in which they first ask the favor of cancelling a part of the order and then later state that they are compelled to cancel the entire order. Drury v. Young, 58 Md. 546 . If it he contended that there might have been more than one order to which the correspondence could have referred, ⁵²⁷ it is clear that it referred to the order taken in February or March, 1920, because, as shown by that order, there were goods purchased for a larger price than $3.50 per yard, and also goods at that price and under, and the record discloses no other order to which these letters could refer. In Nelson v. Willey, 97 Md., at page 381, we said: “The Court will not presume the existence of more than one agreement but will call on defendant to furnish proof that there was some other agreement to which the bond did or might refer.” As authority for this proposition the Court quoted Taylors Law of Evidence, and the case of Cave v. Hastings, L. R. 7 Q. B. Div. 128, in which last quoted case Lord Denman, C. J., said: “The cases on this subject are not at