S. J. Van Lill Co. v. Frederick City Packing Co.

Oebutt, J., delivered the opinion of the Court. The Frederick City Packing Company, a corporation, is engaged in the business of manufacturing and selling canned goods. The S. J. Yan Bill Company, a corporation, is engaged in the' City of Baltimore in the manufacture and sale of various food products. Thomas H. Roberts & Company, a corporation, is engaged in the commission brokerage business in Philadelphia, and Howard E. Jones, trading as Howard E. Jones & Company, is engaged in a similar business in Baltimore, and they were all' so engaged in 1925.

Thomas H. Roberts & Company, having been since 1891 the selling agents for the Frederick City Packing Company, in 1925 sold all the canned goods manufactured by it. In January, 1925, Howard E. Jones telephoned orders to Roberts & Company for 11,000 cases of canned com, but later directed it to make out a contract for 10,000 cases of that order in the name of the S. J. Yan Bill Company. On January 23rd, 1925, Roberts & Company wrote Jones a letter in which it said: Referring to your telephone order today, we have booked you for— ³⁰⁷ “5,000 cases of the Frederick Gity Packing Co.’s No. 2 tin standard unsweetened corn, under Pride of Valley label, out of the 1925 packing, at $1.00 per dozen f. o. h. Frederick, Md., to he covered by our regular pro-rata contract, but with 75% delivery guaranteed.

Subject, however, to our approval of the names of the buyers, which you will submit to us. “This also applies to additional order ’phoned in for 6,000 eases more at $1.00 per dozen, f. o. b. Frederick, Md., and we have protected you likewise on this, making a total of 11,000 eases awaiting buyers’ names.” Jones then executed a memorandum of sale, dated January 23rd, 1925, which contained this statement: “Sold to Howard E. Jones & Co., Baltimore, Md., for account of Thos. Roberts & Co., Philadelphia: “11,000 cases of No. 2 Frederick City Packing Co. Standard Unsweetened Crushed Corn at $1.00 per dozen. “Remarks: “If packer’s label to be used, buyer’s option of the following brands: Proclamation, Pride of Valley, Artie, Richland, Mountain View or Early Morning Bloom. “If shipped unlabeled or under buyer’s label, allowance of $1.50 per M. for labels. “1925 Pack. “Future contract will follow: “Terms: Cash less 1%% ten days. E. O. B. Frederick, Md. “Ship: "When packed — shipping instructions to be furnished. “Howard E. Jones & Co., “Brokers.” On January 24th Roberts & 'Company wrote Jones as follows, in which it stated in part: “* * * We guarantee the pack this year to equal last year’s samples.

We are sending samples under the Pride of the Valley label, that will represent what we guarantee to deliver for future delivery, namely, ³⁰⁸ strictly unsweetened crushed corn. Now if they want the extra sweetened this would cost them 5c per dozen more, but these samples only represent the unsweetened, as they did not pack any of the extra sweetened last year.” On February 7th, 1925, Jones wrote Roberts & Company this letter: “As per telephone conversation, please insert S. J. Van Lili Company, Baltimore, Maryland, as the buyers for the 10,000 cases of Frederick City, 1925 pack corn you have booked fox us. “On the 1,000 cases of the same goods insert Wagner Brothers, Baltimore, as the buyers. “Also let us have % dozen tins of No. 10 last years pack, so that Van Lili can start working on same, and send us samples of the different labels that you will use on the pack of Corn, as we understand you have several labels there. “Let us have contracts for buyers’ signatures.” On February 9th, 1925, Roberts & Company wrote Jones that: “We have your letter of the 7th and as requested we have assigned 10,000 cases of your purchase of Frederick City Corn to S. J. Van Lili Co., Baltimore, and 1,000 cases to Wagner Bros., and are enclosing contracts herewith.'” And on February 13th, 1925, Jones wrote Roberts & Company, inclosing a “properly signed contract covering your sale to S'. J. Van Lili Company of 10,000 cases of Frederick City Packing C'o.’s corn,” described as “No. 2 tin Standard Unsweetened Corn” at $1.00 per dozen f. o. b. factory under packer’s label. Under that contract the seller agreed to' deliver seventy-five per cent, of the goods sold, and to furnish as promptly as possible “cans well filled with sound wholesome fruit” of the “packing of 1925.” It guaranteed that the goods sold should conform to the National Food and ³⁰⁹ Drug Act, aud in lieu of a guaranty against “swells” made an allowance of one-quarter of one per cent.

On August 13th, 1925, Roberts & Company wrote Jones that the Frederick City Packing Company was demanding immediate shipping instructions for all corn orders, and on the following day Jones wrote giving shipping instructions for 125 of the 1000 cases sold to Wagner Brothers, and on August 19th, 1925, he wrote Roberts & Company as follows: “It seems as though unsweetened com doesn’t sell — ■ we have been offering our trade the orders booked for Lord Mott Company and S. J. Van Lili Company, as they informed us they could not sell this corn — buyers want sweetened corn. “Now both of these buyers are anxious to sell this unsweetened corn. Can’t you help them out? You know just what trade uses unsweetened corn. Your quotations today are $1.05 per dozen, factory — this com was booked with you at $1.00 per dozen — we offer it to you today at $1.00 per dozen, factory.

It strikes us that you would be only too glad to have it in your possession. “We are making special efforts again this week to sell it and trust we will be successful, but don’t you make shipment of either of these two orders until you have received specific shipping instructions from us. We know you aren’t ready yet to ship, as you just started packing com. “We asked you to send us twelve samples, but you informed us you could not do so at this time. We wanted these samples to help us dispose of this corn, and then we could immediately give you shipping instructions, unless you can give us orders for it yourselves.” Again on the same day he wrote: “Supplementing our favor of the 11th, after the 25 cases which we gave you instructions for of No. 2 Pride of Valley Brand crashed com yesterday, there remains yet in Wagner Brothers order for 1,000 cases, 250 cases that no instructions have been given you on, ³¹⁰ so you will please ship these 250 cases, and 750 cases part of the order booked for S. J. Van Lili Company, making 1,000 cases, in all, of No. 2 Pride of Valley brand standard crushed com, to Howard E. Jones & Company, c/o B. & O. delivery Camden Warehouse, Baltimore, sending the invoice to us, made out in S. J. Van Lili Company’s name. “We are doing our best to dispose of this com for Van Lili as per our letter to you earlier in the day.” Following that letter one thousand cases of canned corn were shipped by the Frederick Oity Packing Company as directed, and on August 29th, 1925, the Van Lili Company wrote Roberts & Company as follows: “Referring to the 750 cases No. 2 tins Pride of Valley corn shipped in car consigned to Howard E. Jones & Co. as per your invoice of the 25th instant. “Beg to advise that we drew samples from this car which has arrived at Camden Warehouses and compared with sample you sent us of last year’s pack and there is as much difference as between night and day. “This corn is bitter, tough, sloppy, poorly filled and yellow color. Sample of last year’s com shows up as a good consistency and white color. “We, therefore, beg to advise that we cannot use this corn and same is at Camden Warehouses subject to your orders and disposition. * * * “P. S. — We advised Howard E. Jones & Co. some days ago to send on samples of this new pack before making any shipments.” On August 31st it wrote another letter in which it said in part: “Beg to advise that we cut additional cans today in Howard E. Jones & Co.’s office, of this lot, and found two cans that were sour and balance of the cans cut with nothing but water showing on the tops and no corn in sight, which shows that same is very poor fill and sloppy. “Howard E. Jones & Co. has requested us to write you further, as they state that they had a telephone ³¹¹ conversation with, yon today in reference to this lot of corn, and that yon requested us to make an offer on same. “We beg to advise that we would not have this corn at any price, and, furthermore, wish to advise that, as the car that has just been shipped under date of the 25th instant represents the contract we have with you for 10,000 cases, we- will not take any of this lot of com and will consider the contract canceled out.

We bought standard goods, and, therefore, we expected to get just what we bought.” But prior to those two letters, on August 22nd, 1925, the Van Lili Company had written Roberts that: “We have had several cans of the Frederick City Packing Company’s last year corn which our salesmen have shown to the trade, and they find it impossible to interest any of their customers in this com for the reasons that it is sloppy. “They also find that Sweetened Corn of a good consistency and superior pack is offered at lower prices than we can offer this corn of inferior quality. “Now what we want you to do is send us twelve tins immediately, of this year’s pack before you ship the car we ordered, which Howard E. Jones & Company has instructed you to ship, as we are afraid that all of our buyers that this car is sold to will reject same.” Following that correspondence some effort was made at arbitration, but it came to nothing, and the buyer having definitely refused to- accept the goods! shipped by, the seller as under the contract, the seller resold them, and charged the buyer with the loss, which resulted from, the resale. The buyer refused to: pay that charge', and this, suit was, brought in the Superior Court of Baltimore City to' collect it. The case was tried by the court without the aid of a jury, and, at its conclusion, the court found its verdict for the plaintiff for $3,086.85, and from the judgment on that verdict this appeal was taken. ³¹² The record presents nineteen exceptions, of which eighteen relate to rulings upon questions of evidence and one to the court’s disposition of the prayers. To understand the significance and effect of the rulings involved in the exceptions, some reference to the contentions of the respective parties will be helpful.

In the contract of sale the goods sold were described as “No. 2 tin standard unsweetened com,” but the record does not disclose any specifications or formula by which the “standard” referred to' in the contract can be definitely determined, and in 'consequence much of the controversy revolved about that question. The plaintiff claimed apparently that any sound wholesome com, free from foreign or deleterious matter, white in color, and fit for food, was “standard.” The defendant, however, contended that the “standard” referred to in the contract was fixed by certain samples, which it said were shown it before the contract was made, and that if the corn offered under the contract did not conform to that standard in color, consistency, and proportion of the solid to the liquid content of the cans, that it did not gratify the demands of the contract,.and that they were not obliged to accept it. The defendant claimed too' that Jones was the agent of the seller, that it was bound by his statements as to the quality of com to be furnished under the contract, and that he had stated that it would conform to the samples shown the buyer, while the plaintiff contends that Jones was not its agent, but the agent .of the buyer, and that he had no power to bind it by his statements. Pinally the plaintiff claimed that the com which it tendered conformed to its definition of the “standard” required by the contract, while the defendant contended that it did not conform to that or any proper standard, and that therefore it was justified in refusing to accept it.

In the course of the cross-examination of S. J. Van Lili, Jr., a witness for the defendant, he was asked if he had at any time sold “any or part of the com purchased under the contract,” and he answered, “We did not.” He was then told that J ones had written to Roberts & Company on September ³¹³ 25th, 1925, that the S. J. Van Lili Company had informed him that it had sold the greater portion of the com and was compelled to make delivery to its customers and could not therefore wait any longer for Roberts & Company to settle on arbitration, and asked whether that statement was true ? The witness said be could not answer the question because he did not recall advising Jones that he had the entire car sold, but that they had been selling com during September. In substance the same question was repeated and much the same answer given. The defendant objected to- both of these questions, hut the objections were overruled, and those rulings are the subject of the first and second exceptions.

While the relevancy of the inquiry is scarcely perceptible, we find no reversible error in these rulings. The questions amount to no more than asking the witness if he had not made to Jones statements inconsistent with his testimony, and certainly no rule of practice is better settled than that a cross examiner may lay the foundation for impeaching a witness by asking him if he has not on some former occasions made statements inconsistent with his testimony in the pending ease, if the examiner sufficiently identifies that occasion. David H. Stevenson, vice-president of the T-orseh-Summers Company, which is engaged in the canning business, a witness for the defendant, testified that that company had on February 20th, 1925, bought 3,000 eases of “No-. 2 standard unsweetened corn” of the 1925 “pack” of the appellee through Thomas J. Meehan & Company, brokers, and that, under that contract, it had received in one shipment 1,500 eases. He was then asked to describe the nature of the “goods he found in those cans.” An objection to that question was sustained, and defendant then offered to prove that upon examination of twelve cans taken from the consignment it was found that the com was of an inferior quality, and that Roberts & Company, representing the Frederick City Packing Company, the seller, agreed that it was not worth a dollar a “case,” that fifteen cents a dozen was taken off the price for that lot, and that an additional shipment of 2,000 cases was made by the appellee to- the Torseh-Summers Company, which was all ³¹⁴ right, and accepted.

That offer was overruled, and the defendant called Thomas I* North, who- trades as Thomas J. Meehan & Company, and proved by him that he had bought 5,000 cases of “No. 2 .standard unsweetened com” on February 4th, 1925, from Roberts & Company of the appellee’s 1925 pack, that he was present when the twelve cans were opened, and that 1,500 cases of that order went to the TorschSummers 'Company. He was then asked what quality of com he found in the opened cans, whether the 1,500 cases were accepted by the Torsch-Summers Company and what became of the 1,500 cases. Objections to' all of these questions were sustained, and the defendant then offered to prove that the witness made an examination of the 1,500 cases shipped by appellee to- the Torsch-Summers Company, by taking therefrom a “dozen or two-” cans, opening and inspecting them, that “upon examining the opened cans he found the corn | contained therein was not “standard unsweetened corn,” but of an inferior grade, and that it contained an excessive quantity of water, particles of silk, husks, and “other objects,” and that he thereupon rejected the shipment, but that his company finally took it at a reduction in price of fifteen cents per dozen, and that the balance of the corn which it had bought from appellee was of the quality specified in its contract and was accepted. That offer was also overruled, and those rulings are the subject of exceptions numbered three to five and seven to nine inclusive. .The com referred to in this series of questions and offers was no part of the com tendered to- the appellant, but it is contended that this testimony should have been admitted because appellee had offered evidence in the case tending to show that it packed only one grade of com, and that its entire pack was of the same quality, and appellant says that, if that is so, then the quality and grade of any part of appellee’s pack would fairly indicate the quality and grade of any other part of it.

Ordinarily it is not permissible to prove the existence of one fact by proving the existence of other facts, which have no necessary connection with or relation to it (22 O. J. 750), and the fact that the appellee had sold ³¹⁵ defective or substandard corn to others, standing alone, would not he