Martin Fertilizer Co. v. Thomas & Co.

Adkins, J., delivered the opinion of the Court. On December 18th, 1916, appellant and appellee entered in the following contract: “Special Sales Contract. “Philadelphia, Pa., December .18, 1916. “Sold to Thomas & Co., P. 0., Frederick, County Frederick, State Md., and bought from the Martin Fertilizer Co., Philadelphia, Pa., the following named brands of fertilizer or fertilizer material, manufactured at Baltimore, Md., subject to tbe below named quotations and conditions(Here follows a table of brands, with formulas and prices.) “Prices quoted are f. o. h. Baltimore in seller’s bags of 167 pounds. “Shipments: The above goods quoted are to be shipped from factory year of 1917. “Settlement: To he made in cash; see above 190, subject to .... discount. “Conditions: The buyer has the privilege of substituting other brands or analysis, provided instructions ⁶³⁶ are received within five (5 days) of the specified date of shipment. “But in no case will the tonnage be reduced. “Executed in duplicate. “Accepted: “The D. B. Martin Company, “J. E. McCormick, Salesman. “Accepted: Across the contract are written the following words: “This contract calls for 1,500 tons, with the privilege of increasing to 3,000 upon buyer giving sellers notice on or before July 1, 1917, goods to be taken out during 1917. “Goods skipped before July 1, to be paid for July 1, in cash (net). “Goods shipped after July 1, to be paid for January 1, 1918, in cash (net). “Any payments made previous to these dates are subject to a discount of 6/o per annum.” In March, 1917, the appellee began ordering goods under this contract and received about 170 tons prior to June 1st, when it was informed by appellant by letter of that date that it could not at that time furnish certain potash and ammoni.ated goods named in the contract. There appears to have been considerable written, telegraphic and oral communication between the parties about this time in reference to the holding up' of orders.

On June 16th, 1917, appellee by letter exercised its option to take tbe additional 1,500 tons making 3,000 in all. On the 19th day of July, 1917, appellee filed in the Circuit Court for Frederick County a bill for specific perform - .anee and for injunction to restrain appellant from disposing of fertilizer and fertilizer material to the extent of the quantity of 3,000 tons agreed to be furnished to the plaintiff. ⁶³⁷ On July 25, 1917, the Court passed an order requiring appellant to show cause on or before August 9, 1917, why an injunction should not be granted. Further proceedings in this case were suspended by reason of some new arrangement between the parties by which additional shipments were made to appellee. Subsequently a dispute arose between the parties as to whether under the supplemental contract the payment required by the original contract to- he made on July 1, 1917, was still required to be made on that date, and the above proceedings were revived.

On September 7th, appearance was entered for the appellant, the defendant below, and on September 25th, a demurrer filed to the bill of complaint. On October 30th, 1917, an amended hill of complaint was filed which was demurred to on November 16th. On February 21th, 1919, order of Court was filed sustaining demurrer and directing that the case be transferred to the trial docket on the law side of the Court for trial. On March 3rd, 1919, appellee, the plaintiff below, filed its declaration in which were two1- special counts on the contract of December 18, 1916, and the common counts, said contract being filed as an exhibit.

General issue pleas were filed and a demand for a bill of particulars as to plaintiff’s claim under the common counts, whereupon pleas were withdrawn by leave of Oourt and a demurrer entered to the declaration which was overruled, and the pleas were then refiled. At the conclusion of plaintiff’s testimony it moved to withdraw the original declaration and substitute an amended declaration. Defendant objected, but the Court overruled the objection and permitted the amended declaration to be filed, in which the contract of December 18th, 1916, is set out and a breach thereof charged in one count, and in a second count the said original contract is set out and a clause added showing a modification thereof as follows: “And for that, on the 19th day of July, 1917, said contract was by agreement of the plaintiff and the defendant verbally modified as follows, to wit: that the ⁶³⁸ defendant was to furnish 2,140 tons of fertilizer and fertilizer materials at the prices stipulated in the original contract, and the residue at an advanced price of thirty cents per unit for available phosphoric acid, all shipments to he made sight draft, hill of lading attached (in 200-pound bags), with a discount equivalent to 6% per annum, from day of shipment to January 1st, 1918; and for that although the plaintiff often requested the defendant to deliver the fertilizer and fertilizer materials, in accordance with the said modified agreement, yet the defendant failed and refused to deliver a large portion, to wit, 2,258 and 2/10 tons, to ,the great loss, injury and damage of the plaintiff.” The overruling of defendant’s objection to the amendment t£ the declaration is the subject of the ninth bill of exception and that can conveniently be considered at this point. It is strongly urged by counsel for appellant that, under Section 115 of Article 75 of the Code, after amendment of the pleadings to “conform the case to the course of the court to which the same shall have been removed” as provided by the statute, no further amendment can be made, and an analogy is sought to be drawn to the case of issues sent from the Orphans’ Court to a Court of Law for trial.

But the analogy obviously fails in that in the first instance the erne is removed and the Court to which it is removed acquires jurisdiction for all purposes as if the suit had originated in that Court, whereas where issues are sent by the Orphans’ Court to a Court of Law the former does not lose jurisdiction of the subject matter of the suit, and the only jurisdiction acquired by the latter is to answer the questions submitted, and to return the answers to the Orphans’ Court so that judgment may be entered by it. In Safe Deposit Co. v. Cahn, 102 Md. 542 , this Court said, referring to said statute, “the statute shows it is the declared policy of the law that where it is apparent the plaintiff is entitled to some remedy, the mere fact that he has in- ⁶³⁹ voted tlie aid of the wrong tribunal shall not he a sufficient cause for the dismissal of the bill of complaint.” This means, as we understand it, that the statute operates (where the discretion given the trial judge is exercised) to start the litigants afresh in the right Court with all the privileges thev would have had if suit had been originally instituted in that Court. We have no- doubt of the correctness of the ruling of the Court on this exception. A verdict was rendered for the plaintiff on which judgment was entered from which the appeal -was taken.

In the course of the trial a number of exceptions were reserved to tbe rulings of the Court on the testimony, which we will pass upon in order. Referring to 683.9 tons, of fertilizer which appellee did not sell because of the refusal of appellant to deliver, the manager of appellee was asked: “How did you arrive at the loss on these, the 683.9 tons?” The overruling by the Court to an objection to this question constitutes, tbe first bill of exception. The witness answered that question as follows: “We took the loss on the 683.9 tons, on the average basis of the actual fertilizer delivered, eliminating the 16% rock because of the fact that there was only 200 tons specified in the contract, which made a loss of 6.32% per ton based on the market price of the goods.” It is objected to the question that it assumed there was a loss. Probably ibis question should have been preceded by .a preliminary one, but as. the fact of the loss, was subsequently proved no harm was done by it, and we find no reversible error in this ruling.

The third exception is to the refusal of the Court to permit a question in reference to the conduct of the appellee in regard to previous contract between the parties. As that contract was not involved in this case the Court properly sustained an objection to the question. The third, fourth and fifth exceptions are to questions asked a witness, while under eross.-examina.tion, by the Court on the subject of damages sustained by the appellee. It is ⁶⁴⁰ objected that this subject, bad been thoroughly covered in chief, and the Court should not have permitted counsel h> rehash the matter on re-examination.

This overlooks the fact that the trial Court has- control of matters of this sort; and that the order of taking the testimony and departure from strict rules are matters very largely in its discretion. Re1sides the questions objected to could have been properly asked by counsel for appellant on cross-examination even if they had already been asked in chief, and there1 is no reason why the Court should not cross-examine on matters admissible in evidence as to which it feels it has not. sufficient information. The objections were properly overruled. The next exception was abandoned.

The seventh relates to the following question in chief: “Do you know the kind of fertilizer that would have occasioned the least amount of damage to the defendant ?” As the. answer was “Yes, sir,” it is not apparent how anybody was hurt by it, and this exception was not seriously pressed. The eighth is to the Court’s refusal on objection to permit a witness for appellee on cross-examination to answer the following question: “Didn’t the Government requisition a great deal of material that was used in .the manufacture of fertilizer.?” The objection to this question was properly sustained, if for no other reason, because the appellant was not defending this suit on the ground that it was unable to perform its contract, but solely on the ground that it was let out because of an alleged breach by the appellee in failing to make the payment on July 1st required, as appellant contended, by the contract. In any event the fact in this question was proved by at least one other witness, and not controverted. The remaining exception is to the granting of plaintiff’s first and fourth prayers and to the rejection of defendant’s eighth prayer, and to the substitution of the prayer prepared by the Court marked “defendant’s ninth prayer.” ⁶⁴¹ These prayers were as follows $ Plaintiff's First Prayer — The plaintiff prays the Court to instruct the jury that if they find from, the evidence that the contract set out in the amended declaration was signed by the plaintiff and accepted by the defendant, and shall further find that the contract was afterwards modified by agreement of the parties, and that the defendant was. requested by the plaintiff to furnish fertilizers and fertilizer materials under the modified agreement (if they find the agreement, was modified, as aforesaid) and that the defendant failed and refused to furnish the fertilizers and fertilizer materials, as requested to be furnished by the plaintiff, or any part thereof, in accordance with the terms of