Parks v. Griffith & Boyd Co.

⁴⁹⁶ PattisoN, J., delivered tlie opinion of the Court. The appellee company, engaged in the manufacture of fertilizers in the City of Baltimore, in June, 1910, submitted to the appellants, dealers in fertilizers, of Ohester-town, Maryland, the following written proposition: “To Messrs. B. E. Parhs & Son, Post-Office, Ohestertown, County Kent, State Md. “We will sell you the following named quantities of Fertilizers during Fall Season at prices and terms named below: Tons. Per Ton.

Baas. Bone Meal. $28. 200 Soft Ground Bone. 24. 167 Special Guano. 22. Ammoniated Bone Phos. 19. Fish Bone & Potash. 19.

Royal Potash Guano. 18. Harvest Queen. 17.50 Cereal Plant Food.. 16. Valley. 15.25 Peerless. 18.50 600 Soluble 12-5 Mixture. 15.80 XX Potash Mixture. 14.40 Standard Potash Compound. 13.75 Special Alkaline Bone Mixture . 14.30 Special Grain Guano. 12.00 H. G. Acid Phos. 16 %. 12.60 H. G. Acid Phos. 14%. 11.60 Original Superphos. 11.10 Gem Phosphate. 10.50 it Dissolved Animal Bone. 22.00 « And as much more as may be mutually satisfactory at the above price,.F. O. B. Cars or Vessel at Baltimore, Md. It is understood that accounts, notes or money arising from the sale or use of these fertilizers shall be the property of the Company until they shall have received full payment for all fertilizers shipped you. To be shipped during fall ’10, route M. D. & V. Ry.

Co. Shipping Point, Ohestertown, County Kent, State Md. ⁴⁹⁷ Terms, cash, Dec. 1st, less 5%. You agree to handle our goods exclusively. Respectfully yours, Gkiejtth & Boyd Co., per T. A. Noble.” Attached to and immediately preceding- the above proposition is found in writing the following- provision: “All agreements are contingent upon strikes, fires and other delays unavoidable or beyond our control, and are subject to the approval of Griffith & Boyd Co.” To the above proposition the appellants replied as follows: "To Messrs. Griffith & Boyd Go., Baltimore, Md. “Tour offer hereby accepted upon terms and conditions stated in this contract. “Chestertown, Md., June 17th, 1910.

R. F. Pakks & Sow." In the record we also- find the following letter dated as of the date of the letter of acceptance: “Baltimoke, Md., 6/37/10.. Messrs. B. F. Parks & Son, Chestertown, Md. Gehtlemen : In consideration of your pushing the sale of our goods during the fall season we will allow you the following rebates from prices named you in contract No. 2013 bearing even date, namely, $3.50 per ton on all ammoniated goods, except Bone Meal, Soft Ground Bone and dissolved animal bone; $1.00 per ton on dissolved animal bone; and on Alkaline and Acid goods we will meet Martin & White Co. prices. Very respectfully, Gkieeith & Boyd Co., per Noble.” On the 12th of December the appellee brought suit by titling against the appellants in the Circuit Court for Kent County, and on the 12th of February following filed its declaration, containing six common counts and two special ⁴⁹⁸ counts, eacb based upon the said.written contract, that is, upon the written offer and acceptance heretofore given.

Subsequently the case, at the instance of the appellee, was removed to the.Circuit Court for Talbot County for trial, in which. Court the declaration was amended. The six common counts were permitted to remain therein as in the original declaration, the eighth count was omitted therefrom, and the seventh count, which is a special count upon the alleged written contract, was amended so as to include the above letter of the appellee to the appellant dated June 17th, 1910, which did not appear in the original declaration. In the seventh amended count the above contract is set out in totidem verbis, and in the assignment of its breach the declaration states: “The plaintiff offered itself ready and was ready and willing at all times, during the life of said contract, to carry the same out according to its terms and to deliver the' goods at and for the prices named; but the defendants refused to accept the goods or to pay for same, whereby the plaintiffs suffered great loss and damage.” Before pleading to the amended bill the appellants demanded a bill of particulars as to the first six counts.

This was furnished by the plaintiff, which shows an alleged indebtedness from the defendant to the plaintiff of $70.21, for guano sold and delivered by the plaintiff to the defendant, the items thereof being dated June 2lst, 24th and 27th, 1910, respectively.. The defendant then filed the following pleas r “The defendants, by Lewin W. Wiekes, T. Hughlett Henry & R. Groome Parks, attorneys, for pleas to the plaintiff’s amended declaration says: 1. That they never promised as alleged. 2. That they never were indebted as alleged. 3.

That the defendants paid the account filed by the plaintiff in compliance with the defendants’ demand for a bill of particulars on the first six counts of the plaintiff’s' declaration. ⁴⁹⁹ 4. That at tbe times tbe alleged written contract was executed, the plaintiff knew that defendants had contracted with and wore to handle the goods and fertilizers of Martin & White Co., and that it was understood between the plaintiff and defendants that the defendants were to handle the goods and fertilizers of Martin & White Company and were not to handle the goods of the plaintiff exclusively.” To which the plaintiff replied by joining issue on the first and second, by traversing the third, and demurring to the fourth. The demurrer to the fourth plea was sustained, and upon a joinder of issue on the third replication the case was heard before a jury, which rendered a verdict in favor of the plaintiff for the sum of $1,861.19. The docket entries disclose that the plaintiff and defendant each offered a number of prayers and that exceptions were noted by the defendants to the plaintiff’s granted prayers.

These prayers, however, are not in the record, nor does it contain the evidence offered. Therefore, the sole question submitted to us on this appeal is one of pleading, which was raised by the demurrer of the plaintiff to the defendants’ fourth plea, which demurrer, as we have stated, was sustained. It is a well-established rule of law that whenever in the progress of a case a demurrer is interposed to any pleading, it is the duty of the Court in passing upon it to inspect the whole record, and mounting up to the first fault, to give judgment against the party committing the first material error, if the fault be one of substance. Poe, Vol. 1, sec. 706; Eakle v. Smith, 27 Md. 480 ; The Pres.

Man. & Co., of the Wash. & Balto. Turnpike Road, v. The State, 19 Md. 239 ; Gusdorff v. Duncan, 94 Md. 160 ; The Osceola Tribe No. 11, I. O. R. M., v. Schmidt, 57 Md. 106 ; State, use of Buckey, v. Culler, 18 Md. 430 . Following this rule, we will inspect and carefully examine the plaintiff’s declaration to ascertain if, by the above test, it is legally sufficient. As the seventh count of the declaration is based upon the alleged written contract, created as it is contended by the ⁵⁰⁰ written offer of the plaintiff and the acceptances thereof by the defendants, we will first inquire into the validity and binding effect of such alleged contract.

In the case of the Wheeling Steel and Iron Company v. Evans, 97 Md. 305 , which was an action of trespass on the case, instituted by the Wheeling Steel and Iron Company against Evans for breach by the latter of his alleged warranty of the authority of William J. Driscoll to contract on behalf of the Evans Marble Company for the purchase of one hundred tons of tack plate for the manufacture of tacks, the Evans Marble Company on September 13th, 1899, wrote the Wheeling Steel and Iron Company to quote its best price on one hundred tons of tack plate from 12 to 17 gauge. The latter company on September 15th replied: “We quote you for one hundred tons tack plate * * * Nos. 12 and 14, $2.72, f. o. b. Wheeling. No. 15 and 16, $2.80 * * * We make this quotation subject to wire reply not later than Monday, the 18th inst.” On the 20th the Marble Company replied thereto by telegram, saying: “Enter our order for 100 tons tack plate if at prices quoted on 15th, specifications .to follows.” To which telegram the Wheeling Steel and Iron Company replied on the 22nd of September, saying: “We have your telegram of the 20th inst., and have entered your order for 100 tons of tack plate at prices quoted by us on the 15th inst.” Thereafter, the Marble Company refused to take the tack plate and the suit, as stated, followed.

In speaking of this alleged contract, created by the correspondence above given. Judge McShebey, in delivering the opinion of the Court, said: “The letter of September the fifteenth quoted the prices of four grades of tack iron,.viz: Nos. 12 and 14 at $2.72 per one hundred pounds, and Nos. 15 and 16 at $2.80 per one hundred pounds; whilst the telegram of the twentieth simply directed the Steel and Iron Company to enter the Marble Company’s order for one hundred tons of tack plate’, ‘specifications to follow.’ No specifications, that is to say, no designation of the number of tons of any of the four grades, was ever furnished. If the purchaser had the option ⁵⁰¹ to specify for any or all of the four gauges, 11 is dear that until such specifications had been made there could be no definite agreement; because it was the purchasers privilege and right to designate one hundred tons of No. 12, or of No. 14, or of No. 15, or of No. 16; or twenty-five tons, of each gauge, or any other of a vast multitude of different proportions of the whole four gauges, or of any two or three of them. The price of each gauge was definite'; the total quantity of tons was definite, and the times of delivery were definite; hut the proportion of each gauge, a.s well as which of the four would ho required, is wholly indefinito and uncertain.

As to that element of the alleged contract there was obviously no consensus ad idem. The telegram of September the twentieth was not a direct and unequivocal acceptance of any definite and unequivocal proposal which by acceptance could become a complete contract. So far as the price and the gross number of tons were, concerned the telegram may be treated as an acceptance of an antecedent offer, but the superaddition of the words ’'specifications to follows’ left something essential for future action by (lie purchaser, and therefore constituted, in legal effect, a new and independent offer requiring an acceptance by the vendor. The tost of this lies in considering what would have been the measure of damages in a suit instituted by the vendor against the vendee for a breach of the alleged contract.

Would the vendor have been entitled to recover the difference between the contract price and the market price of the whole one hundred tons, reckoned on the basis of $2.80 per hundred pounds; or on the basis of $2.72 por hundred pounds; or on some other basis founded on an arbitrary apportionment of the whole number of tons amongst the four different gauges ? And would not the difficulty of fixing a correct measure of damages have sensibly increased if tlie market', price of the four gauges had fallen in an unequal ratio and in different rates of percentage ? What quantity of each gauge could a. Court or jury declare that the vendee ought to have specified?

If either Court or jury had undertaken such a task it would ⁵⁰² have supplied' a term of the contract which the parties themselves failed to incorporate, and manifestly such a proceeding would have been unwarranted.” In the case before us the appellee offered to sell to the appellants “the following named quantities of fertilizer during the fall season, the prices and terms named below.” It then names the various grades of fertilizers so offered, numbering twenty, with the prices following each grade so named, ranging in amount from $10.50 to $2$ per ton, and the prices therefor all differing, with the exception that two of the grades are offered at twenty-two dollars and two at nineteen dollars per ton. Following this were certain conditions in the offer, and to that offer the appellants replied saying: “Your offer hereby accepted upon terms and conditions stated in this contract.” It is true that in this