Kribs v. Jones

Bartol, C. J., delivered the opinion of the Court. This suit was brought by the appellees, to recover damages for the alleged breach by the appellant, of a contract for the sale and delivery of a quantity of apples. The contract which was in writing, was as follows : ⁴⁰⁵ “Baltimore, November 23rd, 1871. “This is to certify, that I, A. Kribs, agree to furnish Lewis Jones & Son, with what apples I have on hand, at two dollars and fifty cents per barrel, say about three thousand barrels, he to pay my drafts at the bank as he receives the apples, not exceeding one car-load a day. “In consideration of the above agreement, Lewis Jones & Son, agree to pay A. Kribs, three notes, five hundred and forty-three XW dollars each, at fifteen, thirty and forty-five days.” (Signed) Lewis Jones & Son, A. Kbibs. The explanation of the latter part of the agreement referring to the notes, as furnished by the proof, is that there was an unsettled balance due from the appellees to the appellant, for apples purchased under a previous contract, which it was agreed should be secured by three promissory notes, endorsed by third persons, and the giving of which formed a part of the consideration inducing the appellant to enter into the contract of November 23rd 1871.

The appellant was a forwarding, commission and produce dealer, living at Norwalk, Ohio; the appellees were produce merchants doing business in Baltimore. The declaration is upon the turitten contract; the breach alleged in the first count, is that the defendant “failed and refused to forward more than 814 barrels of said quantity of said 3000 barrels of apples, and made default as to the residue.” And in the second count, the breach alleged is a failure “to transmit, or to deliver the same to the Baltimore and Ohio Railroad Company to be forwarded” to the plaintiffs. It was proved that the appellant proceeded to forward apples by the Baltimore & Ohio Railroad, commencing on the 28th day of November, and continuing till the 5th day of December 1871; sending during that period six car-loads; the last two of which arrived in Bal ⁴⁰⁶ timore on. the 8th of December, and were paid for on the 11th. No more were sent on till about the middle of January 1872, when a car-load was forwarded, which the plaintiffs refused to receive, they having greatly fallen in price in the Baltimore market at that time.

It was proved that apples usually bring the highest prices in the latter-part of December, just before Christmas, and that the market value of sound apples in Baltimore between the first of December 1871, and the middle of January following was from $4 to $5' per barrel. Proof was offered that the weather became extremely cold about the beginning of December, and' so continued during the period above mentioned, rendering it impossible to forward apples safely, or without great danger of their destruction, and “that the business of shipping from that vicinity was closed by the severely cold weather.” Construing the written contract according to its terms, and in the light of surrounding circumstances, it imposed the duty upon the appellant as vendor, within a reasonable time, to send forward the apples to the plaintiffs, at a rate not exceeding one car-load a day, and the fact that cold weather came on. making it difficult or impossible to transport them-in safety, would furnish no excuse for the failure to forward them according to the terms of the contract. “If the thing promised be possible in itself, it is no excuse that the promiser became unable to perform it, by causes beyond his own control, for it was his own fault to run the risk of undertaking unconditionally, to fulfil a promise, when he might have guarded himself by the terms of his contract.” Benjamin on Sales, 456, (2nd London Edition,) where the cases in support of the proposition are cited in the notes. In the same book, 135 and 572, it is said: “Where the vendor is bound to send the goods to the purchaser, the rule is well established, that delivery to a common carrier, ******** is a delivery to the purchaser himself, the carrier being ⁴⁰⁷ in contemplation of law in such cases, the bailee of the person to wham not by whom the goods are sent; the latter when employing the carrier, being regarded as the agent of the former for that purpose.” This rule has been recognized by this Court in Magruder vs. Gage, 33 Md., 344 . Treating the written agreement of November 23rd 1871, as the only contract between the parties, there would be no doubt of the correctness of the first, second and third prayers of the appellees ; but it appears that parol testimony was given on the part of the plaintiffs, to prove that on the same day upon which the written contract was made, and subsequently thereto, a verbal agreement w'as made between the parties, that the apples instead of being forwarded to the plaintiffs, should be sent by the appellant, consigned to Krevtzer Brothers, in Baltimore, and upon the payment by the appellees to Kreutzer Bros, of the stipulated price therefor, the bills of lading should be handed over to them, and thereupon they should receive possession of the apples at the depot, upon paying the freight to the railroad company.

The effect of this arrangement was materially to alter the terms of the written contract, and the question arises was it competent and admissible testimony under the pleadings in the cause ? The declaration is upon the written agreement alone, and sets out a contract of sale, with an obligation on the part of the defendant to forward to the plaintiffs, and a breach of that