Mercantile Trust & Deposit Co. v. Rode

Offutt, J., delivered the opinion of the court. This is an action in assumpsit brought in the Baltimore City Court by the appellee, the plaintiff below, for the recovery of the unpaid balance of the purchase price of tomatoes, which he claimed to have sold to Samuel M. Robinson,. ³⁶⁵ of whose estate the appellant, the defendant below, is executor and trustee; for expenses incurred in hauling the tomatoes to the cars in which they were shipped; and for the value of a large number of the baskets in which the tomatoes were contained, and which were to have been returned by Robinson to the appellee. In addition to the common counts, the declaration contains a special count, in which it is alleged, in substance, that the plaintiff sold to Samuel M. Robinson tomatoes in the quantities and at the prices set forth in the bills of particulars filed with the narr, and that at the same time he was employed by Rfobinson to do- the “carting of said tomatoes,” at the prices set out in the bills of particulars, and that in consequence of su.eh employment he did the carting mentioned, and that thereupon Robinson became indebted to him in the sum. of $15,013.76, of which $5,892.48 had been paid, leaving an unpaid balance of $9,121.28; tbat the several sales and agreements under which the tomatoes were sold constituted a “season’s transaction.” Attached to the declaration were eleven “open accounts” setting out in detail the charges made by Rode against Robinson. The first ten set forth the price and “cartage” charges of as many different shipments of tomatoes, the first of which sales was on July 22nd, 1918, and the last of which was on August 21st of the same year.

The eleventh set out the number and price of certain baskets in which the tomatoes had been shipped to Robinson, and which belonged to the plaintiff, and which it was claimed Robinson failed to return. The trial resulted in a. verdict for the plaintiff for $9,-121.29, upon which in due course a judgment was entered, and from that judgment this appeal was taken. The record contains fourteen exceptions, thirteen of which relate tot the court’s rulings upon questions, of evidence, and one to its rulings on the prayers. The nature of the questions presented by the appeal call for no extended review of the evidence, and in dealing with ³⁶⁶ them a brief analysis of the actual controversy between the parties will he sufficient.

The theory of the plaintiff’s case, as stated by his witnesses, is that the tomatoes were all sold to Robinson “on the pavement” or “in the store” in Philadelphia, and that, as they then were of the quality and in the condition represented, he was entitled to receive from Robinson the full amount of the purchase price therefor, without deduction for any damage resulting to them from any cause whatever during their transportation from the pavement or store, 'where they were when sold, to Robinson’s place of business in Baltimore. The appellant’s defense to the action cannot be so briefly stated nor so readily ascertained. Samuel M. Robinson, who actually conducted in his own behalf the negotiations incident to the purchase of the tomatoes, died before the present suit was instituted, and consequently tbe appellant’s, theory of the case must be gathered from thé telegraphic and written correspondence between Robinson and Rode, from tbe testimony of the appellee’s witnesses, and such inferences as may properly be drawn therefrom. By reference to these sources of information it appears to he this: that as Robinson from time to time, as the shipments were made, denied the accuracy of the appellee’s statements of his indebtedness, and contended, in effect or by implication, that Rode, as the seller, was not only obliged to see that the tomatoes were as represented when sold, but was also bound to se>.- that the^ were safely carried to the cars and loaded for shipment to Robinson, and that as the tomatoes when received were in bad condition as a result of Rode’s default in either the one duty or the other, he, Robinson, was entitled to deduct from the amounts of Rode’s bills the price of all such tomatoes as were unfit for use when received by him at Baltimore, and also to deduct the “cartage charges,” that there was, as a result of their respective contentions, an actual dispute between them as to the real meaning and effect of the contract or contracts of sale at the time each of the several shipments ³⁶⁷ of tomatoes was received, and also as to the amount, due by Robinson to Rode on account of them; and that since Robinson sent out checks in payment of the several shipments for the amount named in the statement sent him by Rode, less the deductions which Rpbinson claimed should be made, and at the samel time sent Rode certain memoranda, written on the invoices or statements, as well as on separate: papers, and that as Rode, with knowledge of the dispute, and of the purpose for which the checks were sent, accepted and used them, he thereby entered into an “accord” with Robinson, that the checks should be in full settlement of any claim which Rode might have against Robinson for or on account of such shipments, and that upon the payment of such checks all such claims were satisfied.

Practically all the negotiations were carried on by three persons, Samuel M. Robinson of Baltimore, a manufacturer of canned goods, William L. Fidler, a produce broker, operating in Philadelphia, but who had no fixed place of business and Charles L. Fidler, his son, who was employed by Rode and who represented him in the transactions involved in this case. Tn 1918 Robinson, needing a supply of tomatoes for use in his factory during that season, employed William, L. Fidler to purchase for him a part of that supply. Fidler- thereupon on different occasions purchased tomatoes from J. William Rode, a commission merchant in Philadelphia, who was represented on those occasions by Fidler junior. He purchased these tomatoes: “on the pavement” or “in the store” in Philadelphia, and he, Fidler Sr., Robinson’s broker, superintended the hauling of the tomatoes to the cars for shipment, and also saw to the loading of them, but the carters who did the hauling were actually paid by Rode.

The tomatoes so shipped arrived in Baltimore in bad condition, due, it was claimed, to the manner in which they had been loaded. As each shipment was made Rode sent- a statement of the amount due on it for the price of the tomatoes, ³⁶⁸ and for the cartage, the expense of hauling them to the cars, and as these statements were received by him, Robinson deducted from the amounts charged thereon the charges made for such tomatoes as were damaged and the charge for cartage,- and sent Rode his check for the balance, occasionally at a lower" rate than that charged in the statement, and at the same time he sent with the check Rode’s statement with the changes and deductions written thereon, and also- attached a written memorandum setting out in greater detail these changes and deductions, and on August 1st he wrote a letter to Rode again directing his attention to the deductions from Rode’s charges for shipments made prior to that time and to the reasons therefor, In addition to the tomatoes thus purchased through Fidler Sr., as a broker, Robinson bought one shipment directly from Rode, and he also made changes and deductions in the statement sent him for the amount due on that shipment, and sent his check on account of the amount appearing to be due after these changes and deductions had been made. These checks and memoranda were in due course received by Rode without comment or complaint. He cashed the checks but, except for such inferences as may be drawn from that fact, he did not inform Robinson whether he was satisfied with the deductions and changes so made, or make any protest against them until he had completed his shipments.

This is explained' by Fidler Jr. as due to the fact that they did not take Robinson “seriously.” He said that no attention was paid to the deductions and memoranda thus made by Robinson, that he “had never taken seriously anything that Robinson would have done”; if he had split the bills in half witness would not have taken them seriously; that they paid no attention to Robinson’s telegram to Rode of August 3rd reading “four cars just arrived. Not ordered. Cannot use all. Advise.” While the record does not disclose any reason for this facetious! view of Robinson and his conduct, as a matter of fact nothing was said to Robinson ³⁶⁹ about the deductions until after the last shipment from Rode to Robinson had been made, and even then specific reference was only made to a single shipment.

At the time the tomatoes referred to were sold the plaintiff claimed that it was understood that thei baskets containing them belonged to the seller, and should be returned to him by the buyer, and as Robinson failed to return a part of them, the appellee also sought to recover in this, action the value of the baskets so retained. The plaintiff was permitted to prove, over the defendant’s objection, that Eidler Sr. had been employed as a broker for Robinson in 1917 and also to prove the character and extent of his agency under that employment. Manifestly such testimony was inadmissible unless there was. some connection between the employment in 1917 and the employment in 1918, which made it relevant, but while there was no evidence of any such fact at the time the testimony was given, Eidler Sr. later testified that Robinson had employed him in 1918 to buy tomatoes for him the “same a,a he always had,” and consequently, since the manner in which he had formerly bought tomatoes for Robinson was adopted as the measure of his authority in 1918, the nature and extent of that authority was a material fact, and there was therefore no reversible error in the rulings which are the subject of the first, second and third exceptions. Erank E. McGowan, a commission merchant operating in Philadelphia, was asked: “Is there any custom among the commission men, and buyers buying from them, as to the place of sale general, and fixed?” He was permitted, over objection, to answer the question and said: “Do-you mean how we sell the stuff?” and added, “We sell the stuff right in our store.” The court then said: “No. Is there a fixed invariable custom among all the commission merchants in Philadelphia ?” Having; said there was, he was then asked: “What, is the custom?” This question was also permitted over objection and the witness testified that they sold every ³⁷⁰ thing deliverable in their stores'.

He further said that that was the custom in the “downtown market,” but he could not “say so much for the other one”; that there were two markets in Philadelphia, the downtown market and the uptown market, but that he was not acquainted with the uptown market. There was no testimony as to the lengtth of time the custom had prevailed. The defendant then moved to strike out the testimony, but the motion was overruled. These rulings are the subject of the fourth, fifth and sixth exceptions.

In our opinion there was error in these rulings. The custom was at most a local usage applicable to persons in a particular- business and only shown .to have been recognized in one of the two Philadelphia markets referred to in the testimony. Such testimony was clearly irrelevant as to the purchase® made through Eidler 'Sir., because he testified positively to the terms and conditions of the contracts of sale under which he bought the tomatoes purchased by him for Robinson from Rode, and as such terms and conditions were plain and unambiguous, no evidence of custom or usage was admissible either to corroborate the witness or to control or vary the contract (Rich v. Boyce, 39 Md. 326 ; Susquehanna Fertilizer Co. v. White, 66 Md. 444 ), “for while usage maybe admissible to make plain what is doubtful it is never admissible to contradict what is plain” (12 Cyc. 1092), and as there was no proof that the usage or custom was known to or-adopted by Robinson he could not have been bound by it. Oelrichs v. Ford, 21 Md. 520 ; Appleman v. Fisher, 34 Md. 540 ; 27 R. C. L. p. 163; 3 Jones Ev., par. 464.

And it could not have affected the contract of sale made by him directly with Rode. John W. Wescott, a lawyer practicing his profession in Philadelphia, and who was one of the counsel for the plaintiff, after stating that he knew1 “something” about the laws of Pennsylvania was asked: “If a contract was entered into' in the 'State of Pennsylvania whereby, upon an order of a broker acting on behalf of a prospective buyer- of goods, the ³⁷¹ goods were ordered from the seller and delivered to the broker on behalf of the buyer, who subsequently sent the seller a check for less than the agreed price which bore the words In full settlement,’ or In full settlement to date/ in the absence of any other consideration, agreement or release, whether the use of such cheek by the seller operated as a discharge of the purchaser’s obligation to pay the full amount of the purchase price,” and the witness replied, it did not so operate. The court’s ruling in allowing this question is the subject of the seventh exception. The question wasi improper for various and obvious reasons., but as it does not appear that the appellant was injured by it, since the learned judge while admitting the question told the jury that they need not be bothered about the answer, and subsequently, in granting the defendant’s third prayer, effectively neutralized any effect which the opinion of the learned amicus curiae may have had, there was no reversible error in this ruling.

The eighth exception relates to the ruling, of the lower Court in refusing to allow certain freight receipts to be offered in evidence. These bills did not relate to any shipment or claim mentioned in the,, declaration, and were collateral to any issue or proper inquiry in the case, and there was no error in this ruling. The ninth and tenth exceptions relate to the court’s, rulings in striking out testimony of Herbert M. Robinson that he had heard Samuel M. Robinson ask Fidler Jr. if Fidler Sr. “had gone crazy,” and had heard him answer, “He must, because he has ruined both Rode and myself” and that he, the witness, had shown Fidler