Metal Package Corp. v. Osborn

Pattison, J., delivered the opinion of the Court. On the 9th day of Jnlv, 1919, Charles B. Osborn, the appellee, a canner of shoepeg corn, near Aberdeen, in Harford County, Maryland, entered into a contract with the Boyle Can Company, a corporation, engaged in the manufacture of cans used in the canning of corn, by which said company agreed to sell to Osborn, and lie agreed to buy from it, all cans used by him in all the factories owned or controlled by him for the term beginning with the date of the contract and ending on the 31st day of December, 1921. By the contract the seller agreed “to pay to the buyer packers’ cost of all cans and the contents of all cans, * * * which shall have been spoiled by leaks, exceeding two cans per thousand, provided said leaks are shown to be .the result of faulty workmanship in the manufacture of side and bottom seams of cans.” After the execution of the contract, and while it was still in force, the Boyle Oan Company, prior to the year 1921, sold and assigned its business, together with all its unfulfilled contracts, to the appellant, the Metal Package Corporation of New York, which assumed the fulfillment of the unfulfilled contracts made by the Boyle Can Company with its customers, including the contract made with the appellee. It is shown from the record that the business of canning com, especially shoepeg corn, is very extensively carried on ³⁷⁴ in Harford County.

The statement appears in the record that ninety-eight per cent, of all the shoepeg corn canned in the United States is canned in that county. It is also shown that to can the best grade of shoepeg corn, known as the “fancy grade,” it must be canned at once upon the ripening of the corn, for if delayed- beyond that time, the corn when canned will fall to a lower grade, known as the “standard” grade. It sometimes happens that a packer finds he cannot can his corn as fast as it ripens, especially in years of great yields, as in 19.21. At such times he calls upon other pack-, ers who are not in the same position to can some of it for him.

This was the condition that F, O. Mitchell & Brother, canners at Perryman, Harford County, whose factory is only' a few miles from the factory of the appellee, found themselves in in the canning season of 1921. In this situation Osborn agreed to can for them 5,000 cases of shoepeg com. This was about the first of September, fifteen days after the opening of the corn-canning season. • Osborn had been canning his own corn to that time, using the cans furnished- to him by the appellant undér the above mentioned contract; and in canning the corn for F. O. Mitchell & Brother he continued to use the cans furnished him by the appellant. Up to that time he had used four carloads of cans and had discovered nothing wrong with them; that is; no unusual number of swells and leaks had developed from the use of them.But after canning- the corn of F. O. Mitchell & Brother, which had been hauled by him from their field nearby, he sent it by rail to F. O. Mitchell & Brother’s factory.

Upon reaching there, while still in the car and upon the railroad trades, F. O. Mitchell & Brother discovered that the com was in bad condition. The leakage from the cans was running out of the car, and the odor therefrom was extremely offensive. They at once, before taking the com from the car, communicated with Osborn, -and he in turn notified the appellant of its condition. An inspection followed, in which the representatives of the appellant participated, which re-suited in the claim being made by Osborn that the condition ³⁷⁵ of the com was caused by the defective construction of the cans, in that the side and bottom seams had not been properly soldered when made.

After this the appellee resumed the canning of his own corn, using the cans furnished by the appellant, and the same condition, as to the corn placed therein, resulted from the use of them. Again an inspection followed, in which the representative of the appellant again participated, but as the parties were unable to agree upon a basis of settlement, the appellee sued out- a non-resident attachment against the appellant, under which certain machinery valued at nine hundred dollars, belonging to the appellant, Was attached. Thereafter the attachment was dissolved, and the attached property released upom the appellant filing a bond, in the penalty of one thousand dollars, to stand in the place of the property attached. The case then proceeded to trial upon issues joined on pleas to the short note or declaration filed in the attachment proceedings, which contained five of the common counts and a special count upon the contract made oy the appellee with the Boyle Can Company, the fulfillment of which was thereafter assumed by the appellant.

In the course of the trial fifteen exceptions were taken to the rulings of the court, thirteen to its rulings upon the evidence and two upon the prayers. The plaintiff offered one prayer, which was granted. The defendant asked for six instructions, all of which were refused except the sixth, which placed the burden upon the plaintiff “to establish by the greater weight of evidence the issue joined on his part.” By its first prayer the court was asked to instruct the jury that the plaintiff was not entitled to recover for the contents of the 1,024 cases of com. packed by the plaintiff for F. O. Mitchell Brother; by its second, that the plaintiff was not entitled to recover the value of the cans in which said corn was packed, or canned, for F. O. Mitchell & Brother; and by its third prayer, that the plaintiff was not entitled to recover for the cost of labor furnished by F. O. Mitchell & ³⁷⁶ Brother in overhauling the eases of corn so packed by them fox the plaintiff. These prayers were offered upon the theory, first, that the plaintiff, as bailee, could not recover against the defendant for those things mentioned in the prayers, and second, if a bailee could ordinarily recover in cases of this class, the plaintiff, as such, could not recover in this case, because of the provision in his contract with the defendant, in which it is stated that such “guarantee as applied to fruits and vegetable cans shall expire on Jan-uary 1st, and as to oyster cans, on July 1st, succeeding date of delivery and all claims for leaks must be filed in writing with the seller on or before said dates.

Seller shall not be liable for cans, or contents of same, after they have left the possession of the buyer.” The law seems to be well settled that a bailee of personal property may recover for injuries to, or the loss of, such property while in his possession, caused by the acts of persons other than the owner of the property. 3 R. C. L. 49; Central Railroad of New Jersey v. Bayway Refining Co., 81 N. J. L. 456; Bowen v. New York Cent. & H. R. R. Co., 202 Mass. 263 ; 6 Corpus Juris, 1149; Amer. Dist. Telegraph Co. v. Walker, 72 Md. 454 ; and many other cases that might be cited. The right of the bailee to maintain an -action for such loss and injury to the property is based upon his special property therein, and his actual possession or right of. possession at the time of such loss and injury. 3 R. C. L., page 51.

The bailment- in this case is a species of bailment known as locadio operis faciendi, and, as stated by Van Zile on Bailments, section 138, “in this class of bailment, from its very nature, it will be seen that the bailee not only has the right to the possession, but has a special property in the thing bailed, and perhaps a greater interest than in other classes of bailment, because in the performance of the bailment he necessarily mingles with the property of the bailor furnished to him his labor, and often material, in order to carry out the contract-; and more than this, he has the property by con ³⁷⁷ tract and is employed to do upon it certain work and labor, and thus reap a benefit to bimself. * * * And so the bailee, without question, cannot only maintain an action against third parties for an injury to his possession, ,and as to that he is the only party who can during the continuance of the bailment maintain such an action, but the general current of authority seems to be that the bailee can include in such suit damages for the entire injury to the subject of the bailment.” In such cases, as stated by the same author, in section 58 of his work, “The damages are not confined to the mere interest of the bailee, but in case of injury or loss of the property he may recover its full value, together with any special damage to him, and for all beyond his own interest he would be a trustee for the bailor or owner.” In this case, the appellee, under his contract with E. O. Mitchell & Brother, was to can for them five thousand cases of corn. They, of course, were to furnish the corn, and the appellee was not only to provide the labor in canning it, but it devolved upon him to purchase the cans in which the corn was to be canned. These he bought from the appellant, and his contract with the latter for the purchase of said corn contained, as stated above, a provision in the nature of a guarantee by which the appellant "was to pay to the appellee “packe rs' cost of cans and contents for all cans, * * * which shall have been spoiled by leaks, exceeding two cans per thousand, provided said leaks are shown to be the result of faulty wm-Jcmanshiy in the mmmf actum of side or bottom seams of cans.” Of the corn canned for E. O. Mitchell & Brother, 1,021 cases, as claimed by the appellee, were spoiled and rendered absolutely worthless by leaks resulting from faulty workmanship; in the manufacture of side or bottom seams of the cans. The cans containing the spoiled corn, with other cans containing corn that was not damaged or spoiled, were sent by rail to F. O. Mitchell & Brother, though it was not known at the time that the corn was spoiled.

The suit in this case was brought to recover for the total ³⁷⁸ loss of com which spoiled in the cans, and for the cans and cases that contained the spoiled corn, which were worthless thereafter, as well as for the cost of labor expended in canning the corn, together with the item of cost expended by E. O. Mitchell & Brother in overhauling the cans and separating the- good from the bad corn. The three prayers of the defendant now under discussion have relation only to the alleged losses sustained by the appellee in canning the corn of E. O. Mitchell & Brother. It is the claim of the appellant, as expressed by these prayers, that the appellee had no right of action against the appellant because, as contended by it, the cans and their contents, on reaching' the factory of F. O. Mitchell & Brother, had passed out of the possession of the appellee, and the bailment had ceased. If the appellant be correct in its contention that they had at such time passed out of the possession of the appellee, this fact, we think, is not the test by which the plaintiff’s right of action in this case should be determined.

The values of the 1,024 cases of corn and the cans in which it was placed were totally destroyed while in the possession of the appellee by the use of cams which were improperly made and furnished -by the appellant, in violation of the contract under which they were purchased. That is to say, the use of the defective cans, which, as claimed by the appellee, caused the loss of the subject matter of the bailment for which suit is here brought, was at a time when the bailment was still in the possession of the appellee or bailee. The appellee being in possession of the bailment at such time, and having a special property therein, he, in our opinion, had a right of action against the appellant to recover for the alleged losses sustained by him, unless such right was denied to him by some provision of the contract between . them. The case before us differs from the case of Morse v. Andrascoggin R. R. Co., 39 Maine, 285, cited by the appellant and largely relied upon by it.

A dealer in Boston sent cloth cut into coats to the plaintiff in Maine to be made into coats ³⁷⁹ and returned to him. Epon the completion of the coats they were left with and delivered to the depot master of the defendant, to be so forwarded. The coats were placed in a box properly marked to the dealer in Boston and the carriage charges paid thereon. The court said, under the facts of that case, when this was done “his whole duty had been performed,” and he, “having ceased to be a bailee and to have any special property in the coats before they were injured or lost, the plaintiff cannot maintain the action.” In this case the loss occurred while the property was still in the possession of the appellee or bailee, and when he still had a special property therein.

The answer of the appellee to the second claim of the appellant, in support of these prayers, is that the effect given by it to the provision contained in the contract, that the