Mullan v. McKellip

Pattison, J., delivered the opinion of the Court. The appeal in this case is from a judgment recovered by the appellee against the appellant in the Superior Court of Baltimore City. Thomas Mullan, the appellant, entered into an agreement with the 'State Roads Commission to build a concrete road upon what is known as the “Rising 'Sun-P'orter Bridge Road,” of Cecil County, Maryland. . The contract so made was designated and known as “Contract No. Oe.-28.

On the 1st day of December, 1919, Mullan contracted in writing with the Tidewater Portland Cement Company, a corporation, for the purchase of cement to be used “exclusively,” in the construction of the State Road, “between the date of the contract and the 15th day of June, 1920.” The amount of cement required for said work was estimated by the buyer and seller at five thousand six hundred and twenty (5,620) barrels, but by the terms of the contract the seller was not required to “furnish more than the quantity ⁴⁸⁷ of cement actually furnished by the buyer and used on said work”; the cement was to be delivered in cotton bags, four of them making a barrel, and the price to be paid therefor under the contract was $2.74 per barrel, but, by the terms of the contract, this amount was subject to an increase or reduction if the bags, valued in the contract at fifteen cents each, increased or diminished in value. Under this provision of the contract the price per barrel for the cement, was increased from $2.74 to $3.14 with the apparent assent or approval of the appellant; and the cement that was delivered under the contract was billed to him at the last named price. The record discloses that the appellant, on the 23rd day of April, 1920, wrote to> the Tidewater Portland Cement Company saying’: “Kindly ship me to Rising Sun, Md., on May 1st, one car of cement, and on May 7th, one car of cement to same place.” On May 13th, 1920, he wrote the company the following letter: “Tidewater Portland Cement Co. “Gentlemen: “In looking, over your contract for cement, to be delivered at Rising Sun, Md., I find that the time expires on June 15th, 1920. “I ordered on April 23rd one car to be shipped on May 1st, and another on May 7th. I also telephoned your office a few days ago to ship another ear, making a total of three cars on order. - “Of course, you realize that these shipments, being delayed as they are, it will be impossible for me to finish my work before June lotli.

I realize the unusual conditions existing at the present time, but think that you should extend this contract until such a time as I will be able to use all the cement I will require on this contract. ⁴⁸⁸ “I do not think it will take as much cement as the contract calls for, but I would not want you to ship it all to' me at one time, as it would put me to an additional expense of handling same. “I have enough storage capacity to tqke it all, and if there is going to be any trouble about delivering same at the contract price let me know at once,- and I will take care of it before my time expires. “Let the three cars you have on order be shipped about three days apart, starting the first car on receipt of this letter. “Awaiting your reply and thanking you in advance, I am, “Very respt. yours, “(Signed) Thos. Mullan.” He again wrote the company on May 24th, 1920, saying: “ICindly ship me at once ear of cement to Rising Sun, Maryland, to apply on contract.- Kindly reply to my letter of May 13th, 1920.” On June 3rd, 1920, the appellant again wrote the company asking tha-t four cars of cement be shipped to him, one on each of tire following days: June 5th, June 8th, June 11th and June 14th. This letter was followed by one of June 10th in which the appellant said: “It will take about 7,500 bags of cement to complete my contract at Rising Sun, Md., besides the four cars on' order. I am in a position to accept all of this cement at once if it is convenient to you, but if you prefer to ship some of it now and the balance in the month of July, it would be satisfactory to me, provided I get same at my contract price.’’ In reply to the appellant’s letter of the 10th, E. R. Staple-ton, manager of the cement company, wrote saying: ⁴⁸⁹ “Mr. Thomas Mullan, “4001 Greenmount Avenue, Baltimore, Maryland. “Dear Sir: “We have your letter of June 10th, stating that it will take about seventy-five hundred- bags of cement to complete yonr contract at Rising Sun, beside the four cars on order; further, that you are in position to accept all of this cement at once. “On reference to your contract covered by our sales order XTo. 8261, we find that six hundred ninety barrels have been shipped, same going forward in two ears on May 7th and 28th.

In addition to this, we have booked for your account six cars, or a total of thirteen hundred eighty barrels, which have not as yet gone forward. This amount, added to the six hundred ninety barrels above mentioned as having been shipped, would make a total of two thousand seventy barrels. “Please advise if we are correct in our understanding that in addition to the six hundred barrels yon will require seventy-five hundred bags, or eighteen hundred seventy-five barrels, making a total of two thousand five hundred sixty-five barrels. “We are not quite clear on this matter, and will ask you to put us right at your earliest convenience. Please state as specifically as possible how many more barrels you will require in addition to the six hundred ninety barrels which have already gone forward. “Yours very truly, “(Signed) E. R. Stapleton, “General Sales Agent.” Because of the appellant’s difficulty in getting cement, sand, and gravel, as needed in -the construction of the road, caused in part by the embargo laid thereon by the railroad company, and because of his• inability to procure labor in sufficient numbers to enable him to progress with the work ⁴⁹⁰ as fast as lie should have done under the contract for the building of the road, an agreement was made between him and the State Roads Commission by which he was relieved of part of the work, which he, under the contract, had agreed to do. The agreement so made was in writing and is as follows: “State Roads Commission, “Baltimore, Maryland, June 30, 1920. “It is hereby agreed between the State Roads Commission and Thomas Mullan, contractor on the Rising Sun-Porter’s Bridge Road, Contract Ro.

Ce-28,- in Cecil County, that the State Roads Commission will take possession of all his equipment on the ground, excluding teams and trucks, and complete the work according to the contract and specifications, and at the completion make the final estimate in the regular way, and pay to the contractor the total of this final estimate, less three thousand, nine hundred dollars ($3,900.00), which is to be deducted because of the expense to which the State will be put by reason of completing the contract at increased prices. “The material now in transit and on the ground, which is taken over by the State, will be paid for at the following rates: “Cement at $3.80 per barrel at the siding, to be unloaded and hauled by us, bags to be returned by us, and credit so taken. “Sand at $3.00 per ton. “Stone at $3.50 per ton, measurements to be made in the finished work. “The contractor is to complete all headwalls and to make the shoulders on the entire job, but the State Roads Commission will do the. excavation and filling necessary to make the subgrade for the concrete, and lay all the roadway surfacing. “For as much cement as can be purchased after this date at the contractor’s price of $3.14 per barrel f. o. b. railroad siding, at point 'of delivery, he will be ⁴⁹¹ allowed additional compensation to tlie extent of sixty-six cents (66c.) per barrel. “State Roads Commission, “(Signed) J. W. Mackall, “Chairman. “(Signed) Thos. Mullan, “Witness: Contractor. “R. W. Reindollar.” On July 1st, the next day after the execution of the aforesaid contract with the State Roads Commission, the appellant-called upon the Tidewater Oompany, as he says, “to make -sure he was. to get the balance of the cement” that he had ordered from the company to be used in the construction of the road, for at that time there had been shipped to him only one thousand one hundred and fifty barrels. His conversation on that occasion was with Mr. Stapleton, the manager of the company. Mr. Stapleton, in his evidence at the trial of the ca.se, stated that Mullan told him that he had had “a great amount of trouble with his work getting labor * * *, that he had a lot of trouble also getting stone and sand, and the railroad companies were laying embargoes, and he was sick and tired of the contract, and was going to throw it up and give it up entirely, and he said, ‘How, I think 1 can make an arrangement- with Mr. Hirshberger to take over this contract and complete it, and I would like to get this cement coming to me on the contract for Mr. Hirshberger.’ I said, ‘Ho, Tom, J won’t do that at all; your contract does not provide for it; there is no such arrangement in existence, and manufacturing conditions would not permit of my doing that.’ The conversation was possibly half an hoirr or three-quarters of an hour long; but to the best of my memory that was the substance of the conversation.

At the end of the conversation Mr. Mullan said, ‘Well, you will not do it-.’ I said, ‘Ho, Tom, T cannot do it; I cannot, possibly do it.’ He. said, ‘1 guess I will have to give it up.’ I said, ‘All right, write a ⁴⁹² letter confirming that.’ He said, ‘What is the1 best price which yon will give me after confirmation.’ I said, ‘I will take that under consideration and write you this afternoon.’ The market conditions were simply frightful, because of wax conditions, and the railroad conditions, and coal conditions, and so forth. It was not a matter that I- felt that I could render my judgment in regard to, and after careful deliberation on the subject, after Mr. Mullan bad gone out, and in line with our conversation with Mr. Mullan, my letter of July 1st was written; nothing whatever was said about the State Roads Commission or the Broad Creek Construction Company.” Upon cross-examination, Stapleton was asked: “Why did you not let him have cement at his (Mullan’s) price? He told you that you could send it in July. Why was it that you did not let him have it, the cement at the contract price?

A. 'Simply, because in my best judgment his contract was terminated and the market conditions did not permit it.” The appellant in his evidence given in the trial of the case said: “I saw Mr. "Stapleton after making the agreement with the State Roads Commission to do1 this work, or have another contractor to finish the concreting on this work, and I told Mr. Stapleton that T ‘could sell the cement, all the cement I had coming to me under my contract, at a price of sixty-six (66) cents above the contract price with his company * * I also told Mr. Stapleton I had been delayed considerably in this contract, because of not getting cement and not being able to put down concrete without cement; we talked over the conditions as they were at that time, the railroad and the coal troubles. He claimed coal had gone up so in price that it was necessary to raise the price of cement. He never said that he would not shipi me the cement hut he never promised that he would.” Mullan, both upon cross-examination and in reply to' questions asked by the court, denied that he had given up his job or bis contract with the State Roads Oommission to build the ⁴⁹³ road, but lie said in connection therewith “1 had been delayed in getting cement and the railroad had an embargo on stone1 and sand at that time and the State Roads Commission wanted the job pushed faster and Mr. Mackall (chairman of the State Roads Commission) and I took it up and talked it over and we decided to get bids from some contractors who were not very busy at that time or had no job on their hands at all, and we got bids from several contractors, including not only Hirshberger, but the Broad Cheek Construction Company, to whom the contract w'as awarded.” On the same day of the conversation, Stapleton wrote "Mullan the following letter: “Baltimore, Md., TJ. S. A., July 1st, 1920. “Mr. Thomas Mullan, “4001 Greenmount Avenue, “Baltimore, Maryland. “Dear Sir: “With reference to our personal conversation this afternoon, and in accordance therewith, we are to consider your order (our