Miller v. Mantik

Stockbridge, J., delivered the opinion of the Court. On the 6th of August, 1910, the parties to this case entered into a written contract by which the appellee, the plaintiff below, agreed to sell to the appellants 2,000 cases Eo. 2 full standard tomatoes and 1,500 cases Eo. 3 full standard tomatoes. The buyer was to furnish the cases and cans for the fruit and be entitled to a specified allowance for so doing, deliveries were to be made when packed during the season of 1910, not later than October 1st. The vendor commenced deliveries upon the same day the contract was signed, and, according to the plaintiff’s evidence, continued making them up to the 30th day of September, by which time the full amount of the Eo. 2 variety had been delivered and 135 of the 1,500 cases of Eo. 3. ²⁸¹ The present suit is brought, not on the written contract, but in assumpsit to recover upon the basis of a quantum, meruit for a balance due for goods actually delivered, but not paid for by the buyer.

There should be but little difficulty in determining the principles controlling the case. The general rule is unquestionably that where there is a special contract, the recovery, if any, must be had by an action upon that, rather than by a suit based on a quantum meruit, and where there has been a breach in the contract, the party guilty of the breach can not abandon his contract and elect to stand upon the common counts. Dougherty v. Gring, 89 Md. 544 ; Townes v. Cheney, 114 Md. 362 . But the party guilty of the breach may be excused from that default where his act or failure, constituting the breach, is occasioned by some act of the other party, Meyer v. Frental, 113 Md. 45 , or the breach of the contract may be waived by the party to be affected by it.

The defence to the present suit is the non-delivery of 765 cans of 27o. 3 tomatoes, as constituting a breach of the agreement. The non-delivery is admitted by the plaintiff, who insists, nevertheless, that this was due to the refusal of the defendants to furnish cans in accordance with the agreement, and the failure of the defendants to make the payments as stipulated. The fact that the plaintiff did make some deliveries after the time when the defendants had refused or failed to deliver cans is urged by the defendants as showing a waiver on the part of the plaintiff of any right he may have had to abandon the further performance of the contract. It is upon this theory that the first prayer of the defendants was presented, which sought to take the case from the jury.

This prayer was not presented until all the evidence upon both sides was in, and that evidence abounded in contradictions upon matters of fact, from which a waiver might or might not be found to have resulted. The question of waiver may sometimes be one of law for the Court, and then it usually arises as a question of estoppel; Spring Gar ²⁸² dens Co. v. Evans, 9 Md. 1 ; Farmers' Ins. Co. v. Baker, 94 Md. 561 , or it may be a question for tbe jury under proper instruction from tbe Oourt, where it has to be deduced from tbe actions of the parties, 29 Am. & Eng. Ency. 1108.

In this case tbe defendants’ first prayer ashed tbe Oourt to find an estoppel from the. conduct of tbe plaintiff. Tbis was manifestly error in view of tbe conflicting testimony, and tbe prayer was properly refused. Tbe plaintiff in -this case offered no prayers, and tbe defendants two. Tbe second prayer of the