Regal Shop Co. v. Legum Distributing Co.

Collins, J., delivered the opinion of the Court. This is an appeal by The Regal Shop Company,. (Regal), a body corporate, appellant, from a judgment against it and in favor of The Legum Distributing Company, (Legum), a body corporate, appellee. Regal operates a retail store on West Baltimore Street in Baltimore City, selling clothing, furniture, and electrical appliances, including television sets.

Legum is a wholesale distributor of electrical appliances, including television sets. Its offices are at 108 Light Street in Baltimore City where it maintains a show room and repair shop on the first floor, and general offices on the second floor. It has 'a warehouse at 1852 Jackson Street. In 1950 Regal purchased; on open account, console model television sets from Legum.

At the end of the year a number of these sets were unsold. During the latter part of December, 1950, Irvin Lane, sales manager for ²⁶⁹ Legum, came into the Regal store for the purpose of selling additional television sets. At that time, Harry A. Meyers, the buyer for Regal, obtained permission from Lane for the return of six uncrated console television sets for credit. Meyers testified that on January 2, 1951, he instructed McKinley Brown, the chauffeur for Regal, to take the six television sets to Legum’s place of business on Light Street where he had sent electrical appliances to be repaired on previous occasions.

There is no evidence, however, that Regal had ever returned any goods to Legum for credit before. Brown transported the six sets on Regal’s truck to Legum’s place of business on Light Street. He had been given by Meyers a delivery slip in duplicate, a white copy for Legum and a yellow copy to be signed by Legum as a receipt. Meyers told Brown that if he had any difficulty in delivering them to get in touch with him.

At the Light Street address the service manager, Mr. Weinkamp, would not accept the sets. Someone from Legum called Meyers and told him “your truck was down here with six television sets. They are out of cartons, and we can’t take them back.” Meyers then asked the telephone operator at Legum’s to locate Lane with whom he had made arrangements for the return. Lane was located in Essex and was told by Meyers that Legum would not accept the return because the sets were not in cartons.

Lane told Meyers to “sit tight, I will call you back in a short while.” Approximately 20 minutes later Lane called Meyers and said: “Everything is O. K., your boys were instructed to take them to the Jackson Street warehouse.” Meyers heard nothing more about the matter until six months later when Regal’s bookkeeper showed him a bill for $1,515.15 from Legum. Meyers called Legum and was told that the six television sets, which were supposed to have been returned, were never delivered. Meyers further testified that full signatures on receipts were not required. On some deliveries, not with Legum, a receipt was brought back signed “X”.

Regal offered to pay the expenses of trying to trace the sets through the manufacturer, but as far as Meyers ²⁷⁰ knows, this, offer had not been accepted. Mr. Weinkamp, the service manager for Legum, testified that they had no storage space at Light Street, and that merchandise was not accepted at Light Street except for repair. Legum admits that the sets did arrive at its Light Street address and that Brown was told by someone there to take them to the Jackson Street warehouse in South Baltimore. McKinley Brown, not employed by Regal at the time of trial, but who worked for Regal during 1950 and 1951 and up until about four months before the trial, testified that he was driving a truck for Regal in January, 1951.

His duties were to make deliveries and pick up merchandise. When he first started to work for Regal he delivered merchandise to Legum two or three times a week. The custom was to leave the white ticket, to have the yellow ticket initialed or signed and returned to Regal. Sometimes, but not from Legum, receipts would be signed with an “X” by persons who could not write their name.

He recalled the occasion of the delivery of the six television sets. He carried them to Legum’s Light Street office and was told that they would not receive them. He was later told by someone at Legum’s to take them to the Jackson Street warehouse, where he had been in the habit of picking up merchandise. This warehouse was an old fashioned car barn.

He knew where it was because he had been there on previous occasions to get merchandise. He said he could not read very well. He drove to that warehouse, backed his truck over two-thirds inside the warehouse at the platform and two white men, whom he had never seen before, were at the tail gate of his truck. They had opened the door for him.

When he had gone previously to get refrigerators at that location, he had been assisted by white men, who raised them on the truck with a hoist. On this occasion he carried the television sets to the tail gate of the truck and the two white men took them off of the tail gate. One of the men signed the yellow copy of the receipt with a “W” and returned it to Brown. He could not describe these men other than that they were white.

He also testified that ²⁷¹ they sometimes delivered goods at other places to persons who were unknown to him and he accepted as a signature on the yellow receipt an “X” as proof of delivery. The service manager, office manager, and shipping clerk for Legum all testified that it was the invariable practice of Legum to issue a receiving report upon receipt of any goods. These reports were kept in a receipt book and this book contained no copy of a ticket given to Regal for the missing television sets. Testimony was also offered that no delivery is accepted at Legum’s warehouse unless the goods are inspected and signed for by the shipping clerk or his assistant.

One or the other of them were at the warehouse “at all times” and neither of them signs with a “W”. Both of them invariably issue a regular receiving report for goods received. This usual procedure does not seem significant in the instant case because here we have the return of television sets not in cartons. The office manager for Legum testified that the six sets could be identified by serial numbers and that every set is sold and invoiced by a serial number.

In a search for these sets, Legum checked every invoice for sale or service since the television sets were alleged to have been delivered and none of the six sets have ever been located. The men employed at the Legum warehouse at the time of the delivery denied that the sets were ever received there. The trial was held before the trial judge without a jury on March 18, 1954. In finding a judgment in favor of Legum for the $1,515.15 claimed, he stated that the burden of proof was on Regal to show that the goods were delivered back to Legum in accordance with the agreement.

He had no reason to dispute or question the testimony of any witness before him on either side of the case. He further said that Brown, an uneducated colored man, made a good appearance and he had implicit confidence in his testimony. He stated: “He was, at least on Light Street, and was told to go to the Jackson Street warehouse of the plaintiff. He goes to the Jackson Street warehouse, where the doors are open, and there ²⁷² are two men standing on what would be normally a platform but on a level just inside of the warehouse door.

He probably did not say anything to them, thinking apparently everything is all right. He shoved the television sets to the rear of the truck, let the two men, who ever they are, take them off, take the two delivery slips, initial one and return the yellow slip to him. He does not know who they were.' Now, we have the question.”- He also found that Brown had every reason to .believe that the two white men at the Jackson Street warehouse were the agents of Legum. The trial judge further, said: “Now, your man, who is a colored man, a nice appearing man, and a man, as far as I know, perfectly honest and truth-full, but who is not educated, and who would not normally know exactly how to function to protect himself from this kind of a dilemma,- and who testified to details of the delivery, but as to other details he cannot remember, and he testifies to the opening of the. door and going in and delivering goods which, although I believe and he believes it, I just can not understand. * * * I am trying to balance the evidence. -If you had satisfied me, by preponderance of the evidence,, that you had delivered these television sets to persons your man had every right to believe, through the conduct of Legum Distributing Company,were their authorized agents to receive them, I would not have any problem at all.

I would say you have sustained your burden, but I am not satisfied. * * *• If your man had functioned as he .should have—hind-sight is better than foresight, of course—but had you had a more responsible, let us say, employee, he would be able to come in here and say T delivered these goods to two men, one of whom signed for them, here is his name, this is what he looked like, and I have seen him there before’, or something of the kind. How do I know? You are asking me to hold the plaintiff responsible for your employee’s act because he says they were standing inside and opened the door for him. Maybe they broke in.

I do not know. We just cannot find out who they were. * * * Everyone is perfectly sincere .in this case and, yet, it is such a complete mys ²⁷³ tery. I am not satisfied from a preponderance of the evidence that the television sets were delivered to the Legum Distributing Company. I think Mr. Pairo and his client, have done everything within their power to prove the facts, but I am not satisfied upon the preponderance of the testimony and, unfortunate as it is, I find a judgment in favor of the plaintiff, Legum Distributing Company, against the defendant.” From the above statement by the trial judge, who saw and heard the witnesses, he was convinced of the fact that Brown delivered the six television sets to two white men, whom he could not describe and who opened the door for him while inside the Legum warehouse. part Three, Trials, Rule 9(c) of the General Rules of Practice and Procedure provides that in cases tried by