Maryland Fertilizing & Manufacturing Co. v. Lorentz

Bowie, J., delivered the opinion of the Court. The appellees, Lorentz and others, sued the appellant, The Maryland Fertilizing Company, on the 4th of April, .1874, to recover damages for the breach of a contract, entered into between the parties, by letters-dated respectively the 27th and 28th May, 1873. On the date first mentioned, the appellees addressed a letter to L. Sangston, Esq., President of the appellant’s Company, offering to furnish 12,000 carboys of vitriol, * * * equal to 1,620,000 lbs., calculating the.carboys at the ²²⁷ average rate of 135 lbs., at the price of $1.40 per 100 lbs., against their four months note without interest, delivered free of charge in tanks at the appellant’s factory. The deliveries to be as follows: September 1873, October 1873, November 1873, December 1873, January 1874, February 1874. — Each month 2000 carboys in daily deliveries as wmnted, but not, more than 80 — 90 carboys per day.

This offer was accepted by a letter of the President of the appellant, on the 28th of May, reciting the contract, and concluding “ I accept and ratify this contract, as above stated, and as stated in your letter.” The narr. contains two counts ; the first, setting out the contract substantially, alleging a partial performance of the stipulations on the part of the plaintiffs and settlement for the months of September, October, November, and further averring that the appellees were ready and willing, and offered to deliver the 2000 carboys of vitriol, in daily deliveries as wanted, the balance of 2000 carboys in each of the said months of October and November, and the 2000 carboys per month, in the said months of December and January, but the defendant refused to accept or pay for the same. The second count, setting out the contract according to its legal effect, alleged generally, that the plaintiffs were ready and willing, and offered the defendant to deliver the said oil of vitriol, in pursuance of said contract, but the defendant refused to accept or pay for the same. To which the appellant pleaded three pleas. 1st. That it was not indebted as alleged. 2nd.

That it had not promised as alleged. 3rd. That it had not broken the contract as alleged. On these pleas issues were joined. By agreement of counsel, all errors in pleading on either side, were waived, and it was further agreed, that either party might offer evidence, and rely on any fact, to which either would be entitled,- if specifically declared on, or ²²⁸ .pleaded.

The parties having severally offered evidence to maintain the issues joined on their respective parts, the appellees offered three prayers and the appellant four, to the second and third of which, special exceptions were taken by the appellees, and the Court having granted the prayers of the appellees, and rejected those of the appellant, the latter appealed. The first prayer of the appellant presents the question, whether the contract declared on is entire or severable, and affirms it to be indivisible. It declares that if the jury believe that the plaintiffs, after demand had been made on them by the defendant, failed and refused to deliver during the month of September, 1873, to the defendant, 2000 carboys of vitriol, according to the terms and at the times specified in the letter of the plaintiffs, to the President of the defendant’s company, etc., the plaintiffs cannot recover in this action, unless the jury find that the failure of the plaintiffs to deliver the 2000 carboys, was occasioned by the act of the defendant. This proposition of the appellant, is controverted, although not directly negatived by the appellees’ first prayer, which avers that if the defendant received from the plaintiffs, as it wanted, under the contract, certain carboys of oil, in October and November, 1873, (less than the amount agreed to be delivered) and settled therefor, and the defendant stopped the plaintiffs from delivering any more in said two last months, and did not order any more, or indicate to the plaintiffs that it wanted any more in either of said months, or in December, January or February following, but sent to the defendant the letter of Dec. 4th, 1873, (declining to receive any more) and shall further believe the plaintiffs were ready, willing, and offered to deliver to the defendant 2000 carboys per month as wanted, etc., but the defendant refused to receive and pay for the same, then the defendant is liable in this action for 9080 additional carboys during the said last mentioned months.

The theory of this prayer is, that notwithstanding the ²²⁹ plaintiffs’ failure to deliver to the defendant the requisite number of carboys of oil, in September, the subsequent conduct of the defendant, in receiving and settling for small quantities under the contract, in the months of October and November, was a waiver “pro tanto” of the default of the plaintiffs ; and the letter of the President of the defendant to the plaintiffs, of Dec. 4th, 1873, declining to receive any acid on the contract, was such a violation of its terms on the part of the defendant, as to future deliveries, as made them responsible for all the vitriol remaining to be delivered. The appellant’s first prayer is limited entirely to the effect of the non-delivery by the appellees of the stipulated amount of vitriol in the month of September, 1873, without regard to other subsequent dealings between them. This involves the proposition, says the appellant, that if there has been an entire executory contract, and the plaintiff has performed a part of it, and then -wilfully refuses, without legal excuse and against the defendant’s consent, to perforin the rest, he can recover nothing, either in general or special assumpsit; a doctrine well established in cases of dependent covenants, where the performance of the one is a condition precedent to the other. The appellees deny the application of the authorities cited by the appellant, to maintain this position, to the case at bar.

They insist, their inability and failure to perform all the covenants on their part, in September, etc., does not debar them of the right to recover damages for the refusal of the appellant to accept and pay for the subsequent deliveries in the latter months ; that the covenants were independent and divisible; the stipulation which was not performed by the appellees, was only part of the consideration of the contract, for the breach of which- they could be compensated in damages. A great array of authorities has been cited by the counsel, in support of their respective propositions. These ²³⁰ decisions are not, in fact, conflicting in principle; they represent different classes of contracts, which, although, in their general features alike, are dissimilar in detail, and have keen sub-divided by the text hooks, into dependent and independent contracts or covenants. Cutter vs. Powell, 2 Smith’s Leading Cases, 22, is a type of the class of dependent covenants.

Pordage vs. Cole, 1 Saunds., 319, is an example of the independent. In the notes on the former, the annotators say, “Eew questions are of so frequent occurrence, or of so much practical importance, and at the same time so difficult to solve, as those in which the dispute is, whether an action can he brought by one who has entered into a special contract, part of which remains unperformed. We find it laid down in the treatises that, in certain cases, the performance of, or readiness to perform, one side of the contract, is a condition precedent to the right to demand performance of the other side. And rules are given in the text-hooks for the purpose of enabling us to distinguish these cases from another class, in which no such condition exists, hut the contractors are hound by mutual independent covenants or promises.” * * * * “ There is no difficulty in finding cases referrible to each of the above classes, hut the real difficulty is to determine when a case occurs 'in practice, to which of them it is referrible.” In Cutter vs. Powell, the action was on a written promise to pay a sailor thirty guineas, “provided he proceeded, continued, and did his duty as second mate in the ship from Jamaica to Liverpool.” He died before the voyage was completed.

All the Judges, Kenton, Ashhurst, Grose and Lawrence, held it to he an entire contract ; Lord Kenton dwelt upon the amount of compensation being so much larger than the usual compensation by the month, that it- might he regarded as a kind of insurance. The plaintiff stipulated to receive the larger sum if the whole duty were performed, and nothing unless the whole ²³¹ of that duty were performed. The case turned on the particular verbiage of the contract, and the surrounding circumstances. Pordage vs. Cole, 1 Saunders, 319, is the converse of Cutter vs. Powell.

The cause of action was an agreement under seal to pay a certain sum of money for certain lands. Which was held to constitute independent covenants between the parties, “because it shall be intended that both parties have sealed the specialty. And if the plaintiff has not conveyed the land to the defendant, he has also an action of covenant against the plaintiff, upon the agreement contained in the deed, which amounts to a covenant on the part of the plaintiff, to convey the land; and so each party has a mutual remedy against the other.” In the comments on this and analogous cases by the learned editor, it is said, “it appears that the judges in these cases seem to have founded their construction of the independency or dependency of covenants or agreements, on artificial and subtle distinctions without regarding the meaning or intent of the parties.” Note 4, 320 b. Pordage vs. Cole, 1 Wms.

Saunders. After collating and commenting on a number of cases, in which performance is a condition precedent, or concurrent acts are to be done at the same time, and readiness to perform, is a condition precedent to the right of action ; and cases of independent covenants and promises ; the conclusion is reached, “ that the question whether the acts stipulated for in a given contract, are conditions precedent or concurrent, or whether the performance, or readiness to perform, upon either side, be a condition precedent, etc., is to be solved, not by any technical rules, but by the intention of the parties.” In the case of Watchman & Bratt vs. Crook, 5 Gill & John., 254, et seq., this Court declared “that