Saxton v. Stine

³³⁹ Stockbridge, J., delivered the opinion of the Court. The plaintiffs, appellants in this case, brought suit against the defendants to recover damages for an alleged violation of contract upon the part of the defendants. The plaintiffs were residents in Baltimore City, and the defendants of Harrisburg, Pennsylvania, and the suit was in the form of a nonresident attachment which the plaintiffs caused to be issued and laid in their own hands. The case which was tried and from the judgment in which an appeal was taken to this Court, is the short note case, in which, acting under the instructions of the Court, a verdict was rendered in favor of the defendants.

The contract, as it appeared in what was supposed to be a copy filed with the pleadings, differed slightly from the contract as proved by the plaintiffs’ witness, Yeatman, though one of the points of difference has a material bearing upon this case. The contract as testified to was, as follows: “Baltimore, Md., July 18, 1917. “We have bought of Reliable Rag and Metal Company, Harrisburg, Pa., stock on hand and entire accumulation to July 1, 1918, of dry leather scraps on the following basis: “Upper leather scraps, including chrome and combination tannage, at twenty-six dollars ($26.00). “Sole leather scraps, free of leather-board and foreign matter, at fifteen dollars ($15.00). “All per ton of 2,000 lbs. basis f. o. b. cars Harrisburg, Pa. “Shipment in carload lots of not less than thirty thousand (30,000) pounds each, as ready in seller’s bags, to be paid for at ten cents (10c.) each or returned freight prepaid, buyer’s option, and each lot to be loaded separately in the car. Weights guaranteed at destination. “Terms: Cash. “Accepted: Reliable Rag and Metal Company, per Ike Woolf; signed, Thomas H. White & Co.” ³⁴⁰ The prayer offered by the defendants at the close of the plaintiffs’ testimony was: “The defendant prays the Court to instruct the jury that the plaintiff has offered no evidence legally sufficient to entitle the plaintiff to recover and their verdict must be for the defendant.” This prayer’ was granted by the Clourt, a verdict rendered in accordance therewith, judgment entered on the verdict, and the plaintiffs appealed. The action of the Court in granting, the defendants’ prayer constitutes the sole hill of exceptions in this case..

More than one half of the record is occupied with correspondence which passed between the parties to the suit with reference to the performance or non-performance of the provisions of the contract. Each side claims the contract to have been broken, and each side insists that the other was the party by whom the breach was committed. The case is somewhat complicated by reason of the fact that the parties had dealings with one another in regard to matters not embraced under the terms of the contract, and in the accounts kept by the plaintiffs all dealings, whether under the contract or not, were entered in the one account, so that it is difficult from the testimony which the record contains to determine what payments made by the plaintiffs hr tire defendants were for goods purchased under the contract hereinbefore recited, and what, if any, were properly applicable to transactions not covered by the contract. The defendants in their requests for remittances frequently used the term “Advances,” which might be applicable to either’ class of goods purchased.

The plaintiffs on the other hand in most instances made reference to particular carload lots, and as