Parks v. Griffith & Boyd Co.

Stockbridge, J., delivered the opinion of the Court. On May 25th, 1910, R. F. Parks & Son of Chestertown wrote a letter to Griffith & Boyd 'Company of Baltimore, as follows: “We are enclosing order for phosphate. Please ship promptly. Must 'have fall prices at once.

A party in our employ wants to start at once. Advise.” The receipt of the letter by the addressee was acknowledged, with the assurance that the order should have attention and then, “We note that you desire prices at once for the fall season, but owing to the unsettled condition of the chemical market we are not ■quite in a position to quote prices, but we will do our very best to do so within a short time. Just as soon as we can do so we will have our Mr. Roble call to see you.” On the 17th June Mr. 'Roble called on Parks & Son in Chestertown, and then and there presented a list of 20 fertilizers, offering to sell them at various prices ranging from $10.50 to $28 per ton. There appears to have been considerable discussion in regard to the prices, growing out of the ²³⁹ •question as to the prices for which the same or equivalent ¡goods could he purchased from Martin & White Oo.

But either on that same day or upon the morning following an acceptance of the proposition was signed by R. F. Parks & .Son. Contemporaneously with this, or probably preceding the signing of the contract, a letter was written to Messrs. Parks & Son by Mr. Roble, which conclndes as follows: “On alkaline and acid goods we will meet Martin & White Oo. prices.” These various papers will be found fully set out on the first appeal in this case, 117 Md. 496 -497. Three days later than this interview between Mr. Roble •and Mr. Claude Parks, the acting member of R. F. Parks & -Son, the following letter was written to the Griffith & Boyd ‘Co. by Claude Parks: “We are enclosing herewith order which we desire to have shipped on next steamer.

Please prepay freight. We also want this order to go on fall coniraci. Kindly see that the goods are in a good mechanical condition. You will get a big tonnage from us this fall if you will do as we were assured you would do — 'to impress this on your mind we are sending you our very first order.

Please forward us at once 3 sets samples memorandum book, etc. Tell Mr. Roble that Fields has not shown up yet.” Accompanying this letter was an order for the shipment of "2% tona of fertilizer, and on June 24th there was a second -order for an additional ton to he shipped to another person than the one to whom the shipment contained in the order -of June 20th was to be made. Beyond these two orders aggregating 3 y2 tons no further shipments of fertilizer were ■ordered by Parks & Son from the Griffith & Boyd Co. Accordingly on the 12th December, 1910, the Griffith & Boyd Co. instituted a suit against Rufus F. and Claude F. Parks to recover for the goods sold and for the alleged violation of the contract. That suit was before this Court at the October Term., 1911, hut the record contained none of the testimony nor the prayers, which had been offered during the trial of ²⁴⁰ the ease, and the case was decided solely upon a question of pleading, the sufficiency of the declaration, and will be found reported in 117 Md., beginning at page 494. The' declaration as then filed contained the six common counts, and a seventh or special count under which it was sought to recover for the breach of the alleged contract, and a demurrer having been filed to one of the pleas, mounted up to the first error in pleading, which as was pointed out in that decision, was in the seventh or special count of the declaration, it being held that the allegation of the contract therein contained did not show a valid enforceable contract, and that if the contract was invalid it necessarily followed that there co-uld be no breach of it for which damages were recoverable.

The verdict in that cáse having been for $1,861.79, the judgment was reversed and the case remanded for a new trial. After the case had been so remanded the plaintiff filed an amended declaration which contained, as did the original declaration, the six common counts and' two special counts, numbered as 7 and 8. Thereupon the defendant, Parks & Son, filed the general issue plea and a demurrer to the seventh and eighth counts of the amended na/rr. These demurrers were severally sustained, whereupon the plaintiff filed a 9th count to the amended declaration, which.was in like manner demurred to and the demurrer sustained.

In each of these three counts, the .seventh, eighth and ninth, the theory of the plaintiff was that the defendants had sold in the neighborhood of 1600 tons of fertilizer during that season, and that it was entitled to recover the difference between the cost of manufacturing such fertilizer and the contract price for 1600’ tons, under the clause “You agree to handle our goods exclusively.” In response to a demand for a bill of particulars an account was filed for the 3% tons sold, which was said to be filed to each count in the declaration. After the sustaining of the demurrer to the ninth count, an amended ninth count was filed, in which the plaintiff sets forth in full the ²⁴¹ alleged contract between the parties, consisting of the offer made on the 17th Jnne, the acceptance of it, the accompanying letter of the same date allowing certain abatements in price on all ammoniated goods except bone meal, soft ground bone and dissolved animal hone, and a lesser discount on dissolved animal bone, together with the statement that on alkaline and acid goods the plaintiff would meet Martin & White Co. prices; also the letter of June 20th, already quoted and the accompanying order. The amended ninth count then goes on and alleges the additional order of Jnne 24th, the refusal of the defendant to order or accept more than 3% tons of fertilizer, the readiness and willingness of the plaintiff to carry out his contract, that the defendant sold more than 1600 tons not made by the plaintiff, whereby the plaintiff had suffered great damages. A demurrer was- also hied to this amended count, but the demurrer was overruled.

This presents the ease as made out by the declaration. ■ The contract sought to be set up by the pleadings thus far was vague and uncertain in two respects, viz., on the- acid and alkaline goods, upon which the plaintiff agreed in the letter of June 17th to meet the Martin & White Co. prices, there is no allegation that these ever had been, met, and the vagueness as to the amounts of fertilizer, - of the different kinds to be purchased, remained as it was under the original seventh count, and so the rulings of'the trial Court in susr tabling the demurrers to the seventh and eighth counts of the amended declaration filed after the remand and to the ninth count as originally filed, were correct for the reasons set out by Judge Pattison in the former opinion and Wheeling Steele Co. v. Evans, 97 Md. 305 , and Thomson v. Gorlner, 73 Md. 482 , in each of which agreements as full and complete as the one in this ease were held void and unenforceable. It is suggested that these cases have in effect- been overruled-by Kirwan v. Roberts, 99 Md. 341 . But we do not so interpret that case. The agreement there was for the sale of cans of different sizes to ho delivered along from time to time by ²⁴² the vendor.

The prices for the various sizes were different, but the deliveries were to be made monthly, in accordance with certain fixed percentages of the entire amount of the order, the,vendee to designate' the sizes and number, of each desired, at.,the commencement of the month. The contract was attacked upon the ground that, inasmuch as it did not embody the total number of each size of cans to be sold, and which the vendee was to receive, that it was therefore too- vague to furnish .the basis for .an action for its breach. This is sometimes treated as an option, not ripening into a contract until such time as the designation is made, but there was evidence in that case tending to show that a designation and selection of sizes had been made by the bookkeeper, thus rendering certain the only element of the contract which by any possibility could- theretofore have been regarded as uncertain. The present case is, therefore, rather in line with the two earlier eases cited than with the case of Kirwan v. Roberts .

With regard to the amended ninth count the situation is somewhat different. The same elements of vagueness and uncertainty remain, but there is the added element of an allegation of the sale of three and one-half tons of fertilizer under the alleged contract, and that these have not been paid for. With respect to this joinder of two matters, the appellants Parks & Son, contend that this count was thereby rendered bad upon the principle announced by Judge Bueice in White Automobile Co. v. Dorsey, 119 Md. 251 . The distinction between that case and the present is a very plain one, the rule applicable here being that laid down by Judge Sandborn in Cold Blast Trans.

Co. v. Kansas City Bolt and Nut Co., 57 L. R. A. 696, that “accepted orders for goods under contracts void for their uncertainty, vagueness and lack of mutuality, may constitute sales of the goods so ordered at the prices named in the contract, but they do not validate the agreement as to articles which one of the parties to the agreement refuses to sell or deliver, or the other refuses to purchase under the void contract, because neither party is bound ²⁴³ to take or deliver any amount or quantity of the articles thereunder,” See also, Ashcroft v. Butter worth, 136 Mass, 511; Thayer v. Burchard, 99 Mass. 508 ; Hoffman v. Maffioli, 104 Wis. 630 ; Crane v. Crane & Co., 105 Fed. 869 . Nor is this view obviated by the fact that for goods actually sold and delivered a recovery might be had under the common counts. Such a recovery would have had to be on the basis of a quantum meruit, while if the recovery was sought on the basis of a contract, the price named in the contract would control, and in this case the order of June 20th had expressly asked that the order “go on the fall contract.” The action of the trial Court in overruling the demurrer to the amended ninth count was, therefore, proper and will be sustained. To the amended ninth count the defendant filed two pleas, the first admitting a promise as to the sum duo the plaintiff for the three and one-half tons, $70.25, and the tender to the plaintiff of $81.42; while in the second plea they endeavored to set up a usage