Maryland Lumber Co. v. White

Brune, C. J., delivered the opinion of the Court. This case involves an original suit and a cross-claim, and there are appeals from the judgment below on each of them. The original suit was essentially one for conversion of a carload of lumber and plywood; the cross-claim is based upon alleged breaches of contracts for the sale of plywood and of a carload of doors and upon a claim for moneys due upon accounts stated. The parties are Dan Schloss and Jerry Schloss, co-partners, trading as the Baltimore Lumber Company (hereinafter usually referred to as “Baltimore”), H. A. White, trading as the H. A. White Lumber Company (hereinafter usually referred to as “White”), Maryland Lumber Company, a corporation (hereinafter usually referred to as “Maryland”), and (originally) The Pennsylvania Railroad (hereinafter usually referred to as the “Railroad”).

White is a wholesale lumber dealer with his principal place of business in Seattle, Washington. He ships lumber and plywood on a nationwide basis. Maryland and Baltimore are lumber dealers in the City of Baltimore and are competitors whose rivalry ¹⁸⁸ seems to be beyond the ordinary. They are or have been customers of White.

The Railroad was the delivering carrier of a carload of lumber and plywood shipped by White in or about October, 1950. In the original suit Baltimore and White, as plaintiffs, (Baltimore bringing suit to its own use and as assignee of White, and White bringing suit to the use of Baltimore) , sued the Railroad and Maryland on a declaration which (as amended) contained four counts in tort. The chief grounds of suit were conversion by Maryland to its own use of the carload in question and conversion by the Railroad through its having misdelivered the material to Maryland, though it was consigned to White. The plaintiffs delivered an order of satisfaction to the Railroad, which was filed in the trial court on the day when the case was first reached for trial, and the Railroad is not a party to the appeals herein.

On the original suit the trial court entered judgment for the plaintiffs (who will be designated as appellees here, though they are also appellants on the cross-claim) in the amount of $8,880.79, from which Maryland appeals. (Maryland will be designated as appellant here, though it is, in part, an appellee on the cross-claim.) The cross-claim was brought by Maryland against White. Claims aggregating $7,714.47 for alleged breaches of contract were disallowed by the trial court, and Maryland appeals from such disallowance. Judgment was, however, entered in- favor of Maryland against White for $1,446.01.

White does not here contest judgment for $415.69 of that amount made up of various small items, but appeals from the judgment on one item —growing out of the sale of certain doors — included therein, which amounts to $1,030.32. Maryland claims that there is a net balance due it of nearly $5,000. On the day when the case was first reached for trial and the order of satisfaction in favor of the Railroad was filed, the appellant sought and obtained a postponement. When it again came up some weeks later, the ¹⁸⁹ trial court, after hearing preliminary statements, passed an order, with the apparent consent of all parties, reciting that it appeared necessary to examine and determine the accounts between the parties and referring the case to Samuel J. Fisher, Esquire, as auditor and master “to report the pleadings and the facts and his opinion thereon” with “full power to hear all testimony in the within case * * The auditor and master conducted extensive hearings and filed a thorough and carefully considered report analyzing the evidence and stating his findings thereon and his recommendations.

The trial court, after a hearing upon the exceptions to the report filed by the parties, overruled each and every exception, confirmed the report in all respects, approved and adopted the auditor and master’s findings of fact and conclusions of law, and in accordance with his recommendations entered the judgments above stated. Its order also awarded costs (including those of the proceedings before the auditor and master) against Maryland. The reference of the case to the auditor and master is said by the appellees to have been made pursuant to Code (1951), Article 26, Section 9, and in the exercise of the inherent power of the trial court. The appellant makes a somewhat oblique attack in Its brief in this Court on its validity on the ground that the above statute applies only to matters of account, and that the auditor and master went far beyond such matters in considering and reporting upon the question of conversion.

So far as we can discover, no such objection was made in the trial court. Both sides produced considerable testimony before the auditor and master on the question of conversion and engaged in extensive cross-examination on the same question. The matters of accounting which seem to have served as the immediate occasion for the order of reference were brought into the case by the appellant’s cross-claim. Even if the appellant’s present objection might have been meritorious in the trial court (which we do not decide and ¹⁹⁰ do not intend to imply), it comes entirely too late when first raised in this Court.

See Rule 9 of- the Rules of this Court Respecting Appeals. Motion to Dismiss the Appeal. The appellees have moved to dismiss Maryland’s appeal on two grounds: (1) that Maryland’s exceptions to the report of the auditor and master are insufficient; (2) that Maryland has not complied with Rule 39, Section 1 (e) of the Rules of this Court Respecting Appeals, in that the appellant has not incorporated all of the pertinent testimony in the appendix to its brief. (1) Sufficiency of the Exceptions.

Although the appellant’s exceptions to the report of the auditor and master were apparently filed late, this delay, as the appellees concede, is not fatal. Schwartzman v. Payne, 203 Md. 256, 262-263 , 100 A. 2d 23, 26 . However, the appellees strongly urge that the exceptions violate the rule requiring specific and particular exceptions to such a report. Young v. Omohundro, 69 Md. 424, 431-432 , 16 A. 120 .

It appears from the briefs that although Maryland did not file formal, specific exceptions to the report of the auditor and master, it did submit to the trial court a lengthy document setting forth its objections to the report and that this was considered by the court. The wide scope of the order of reference and the actual proceedings under it and the report of the auditor and master all show that what was before the trial court for its actual adjudication went considerably beyond a mere statement of account. Though precise exceptions, such as were filed by the appellees, would have been helpful in sharpening the issues, before the trial court, and perhaps on appeal as well, it appears that all of the questions presented to us were passed upon by the trial court, with the exception of the validity of the order of reference. The appellant’s contention on that point has already been rejected.

Under the above circumstances, we do not think that Maryland’s ¹⁹¹ appeal should be dismissed for failure to file specific exceptions. By this, we do not wish to be understood as approving the very general form of “exceptions” filed by the appellant. (2) Compliance or Non-Compliance with Rule 39. The appellant has based the statement of facts contained in its brief essentially upon only such testimony or other evidence as supports its contentions; and likewise in its appendix it has included generally only such matters (other than some of the pleadings, the order of reference, the report of the auditor and master and the final order of the court) as it must have considered favorable to its contentions.

We think that in the statement of facts there should have been at least a candid admission that the facts were in controversy and were largely resolved below in favor of the appellees, even though this could and would be ascertained from the report of the master and the order confirming it, which are contained in the appendix. The appellant’s statement of facts and appendix together fall far short of presenting all of the data which is necessary to enable this Court to determine the questions presented for decision. The appellees have appropriately set forth their own contentions as to the facts and have included in their appendix material supporting those contentions. With the aid of the material so furnished, we believe that the case has been adequately presented, and it has been fully argued on the merits.

The Court has considered the case on the merits and will deny the motion to dismiss Maryland’s appeal and will proceed to determine both appeals on the merits as now presented. Accordingly, the motion to dismiss Maryland’s appeal is denied. The Original Claim. In the late summer of 1950, Mr. Fabian Kolker, Vice-President of Maryland, telephoned Mr. H. A. White in Seattle, to find out if White could supply some plywood.

The two companies had done business for about ¹⁹² a year and a half previously. As a result of a car shortage then existing, in order to ship plywood from the West Coast to the East it was frequently necessary to start a freight car from the northwest lumber region with a partial lading of lumber and to route it through the plywood country, where the plywood cargo could be loaded into it, and the car would then be forwarded eastward. Mr. White testified that he and Mr. Kolker discussed this situation and agreed that a carload of lumber and plywood should be shipped. Mr. Kolker admitted that Mr. White informed him of the necessity of including some lumber in the car in order to get a car for plywood, but added that Maryland never ordered the lumber and did not need it.

White shipped a carload of lumber and plywood in a car (ACL 52883) consigned to the H. A. White Lumber Company, Baltimore (Calvert Station) by a uniform straight bill of lading. Although Maryland had sometimes been the consignee on previous occasions, the bill of lading in this transaction shows “H. A. White Lumber Company” as both consignor and consignee. The delivering carrier placed a number of cars, including ACL No. 52883, on the private siding of Maryland. The master characterized this as an “inadvertent” error.

By the time that the car arrived in Baltimore, plywood had grown scarcer and more dear but the price of lumber had fallen sharply. Maryland complained by telephone about the fall in the price of lumber and about the grade of plywood and White agreed to a concession of $150 in the price of the lumber. On October. 26, Maryland notified White that the contents of the car would not be accepted. The appellant’s version is: “Upon examination of the aforesaid car ‘ACL No. 52883’, it was discovered that the said car contained ‘lumber’ as well as ‘plywood’, while the Maryland Lumber Company had ordered ‘plywood’ only; that immediately upon the aforesaid discovery, and on October 26, 1950, the Maryland Lumber Compány communicated by Telephone with H. A. White, ¹⁹³ advising him of its refusal to accept the aforesaid car and requested him to divert same.

The said H. A. White accepted the refusal of the car and advised the Maryland Lumber Company that diversion instructions will follow immediately.” On October 27, Maryland wired White that it was waiting for diversion instructions on car plywood ACL 52883. On October 28, Maryland received from White a night letter dated October 27, stating that White sold on current West Coast terms of condition and quotation of sale and refusing to accept cancellation of another car and of this one and concluding as follows: “We have offer on this car at $200 under our cost represented by fall in fir market. Please advise if this acceptable to you and we will divert for your account.” The master summarized the events leading to these telegrams: “White testified that he had talked to Mr. Kolker on the phone five times on the 27th, and that he had told Kolker he would not accept the cancellation of the car. However, on the same day, White testified he agreed to accept the cancellation, or, to use a term which White later insisted upon, agreeing to ‘divert’ the car.

Nevertheless, White sent Maryland a Night Letter, dated October 27, 1950, which Maryland received on October 28, 1950, refusing to accept cancellation of this car. Because of the difference in time and the further fact that one was a Night Letter, it is difficult to state in what order these messages were received. * * * [Mr. White testified] he was ‘hoping to bluff’ Kolker into keeping the car and ‘we knew he couldn’t get at the car without sending us the money on a c.o.d. basis.’ ” A circular dated October 27, 1950, was distributed by White advertising, among other carload lots of lumber, “Car ACL 52883 — being held in Baltimore, Md., by PER for diversion,” and describing the contents of the carload. On October 30, 1950, White began negotations to sell the subject carload to Baltimore and the ¹⁹⁴ sale was agreed to sometime during October Slst, 1950. On November 1st, Maryland received from the White Lumber Company a night letter dated October 31st and reading: “ACL 52883 released today 4:45 PM via Seattle representative PRR to Baltimore Lumber Company.” There was also some testimony by Mr. White to the effect that he and Mr. Kolker agreed by telephone between October 27th and 31st to Maryland’s cancellation of the order for this carload.

The master’s observation that “Undoubtedly, both White and Maryland did considerable jockeying between October 26, 1950 and November 1, 1950” is amply justified. There is considerable conflict in the testimony as to when the car in question was unloaded. Maryland claimed to have unloaded it on October 28th after receiving White’s night letter of the 27th. Against this was testimony of Dan Schloss, one of the plaintiffs, and testimony of an employee of the Railroad.

The master found that Maryland did not begin to unload it until November 1st. He further reported: “I have made a careful analysis of the facts disclosed by the evidence, which leads me to this finding: There is a clear inference that Maryland’s sudden determination to keep the contents of the car occurred when Mr. Kolker learned that White and Schloss were negotiating for a sale thereof to Baltimore Lumber. Learned counsel for Maryland, in his very able oral arguments, stressed the fact that relations between Maryland and Baltimore Lumber were strained beyond the usual limits of keen competition, and there is evidence to support this. Maryland admittedly needed the plywood to carry out its commitments to its customers, and although Maryland knew that it would sustain a loss on the lumber, it preferred to take that loss which was not substantial, rather than allow Baltimore Lumber to get the plywood, which had increased in value.

I believe that Maryland, after weighing the advantages and disadvantages, ¹⁹⁵ promptly decided to retain the contents of the car before White’s deal with Baltimore Lumber could be consummated.” After November 1st, negotiations continued between Maryland and White. Despite the conflict as to when Maryland took possession of the lumber and plywood, there seems to be no doubt that it did so, that it distributed them to its customers, and that Baltimore never received the contents of the car. There were a number of communications between Maryland and White. There was also one