School Sisters of Notre Dame v. Kusnitt

Thomas, J., delivered the opinion of the Court. This appeal is from a judgment recovered in the Superior Court of Baltimore City by Reuben R. Kusnitt, trading as Goodyear Hospital Rubber Company, against the School Sisters of ETotre Dame, a corporation, for $900.00. The suit was on the common counts to which the defendant pleaded that “it was never indebted” and “did not promise as alleged.” Joseph S. Holstein, the only witness for the plaintiff, testified that he was the agent of the Goodyear Hospital Rubber Company and traveled “for them,” and that on the 28th of October, 1913, he called at ETotre Dame College^ on Charles Street avenue, Baltimore, and asked for the Sister Superior. When Sister M. Florentine, the Sister Superior, appeared he exhibited to her samples of rubber goods, and after receiving from her an order for ice bags and water bags he talked with her and another sister about matting for the back stairs of the building.

Sister M. Florentine sent for another sister to show him the stairs in order that he might measure them. ³²⁵ After lie measured the back stairs he asked the Sister Superior “why they did not have the other stairs in front done at the same time.” And she said “no; she could not afford that at the time.” He told her the result of his measurement of the back stairs and the prices of the matting, and she asked hirq. what it would cost, and he replied that he could not tell her, that no rubber man could tell her that in advance, but that itwould cost thirty cents a pound. He then wrote the following order or contract which he and the Sister Superior signed: “Goodyear Hospital Rubber Company, Hartford, Conn. Goodyear’s Famous Rubber Goods of Every Description. Shipped via Penn.

R. R. as soon as possible. When ship Date Oct. 28, 1913. 1% 10 days net 30 days. Terms: Subject to sight draft without notice. Sold to ISÍotre Dame College, City, Charles St. Ave., State, Baltimore, Md. All claims must be made within one day after receipt of goods or no allowance will be made.

We, the above named Institution and Purchaser, Agrees to Take the Following Goods as Specified Below: % doz. M. W. B.....................$25 per dozen. % doz. Z. E. P. Ice Bags............. 15 per dozen. 260 pieces 5/16 (%) Plain Black Matting U"xS6", at 30c. per pound. Special price: 14 pieces 5/16 (%) Plain Black Mattings 8"x30", at 30c. per pound. 12 pieces 5/16 (%) Plain Black Mattings 24,/x36", at 30e. per pound. 2 pieces 5/16 (%) Plain Black Matting 2//x36//, at 30c. per pound. ³²⁶ 1 Ho. 7 In.

Ring, $1.50 Ea. Bevel all edges. Send nails. Ert. to be deducted Off of Bill. 1 Perf. mat.

Thick B's.B'\ name in white H. . D. M. as Donation. Ho. chg. 1 perf. 5'x3' Hotre Dame College; white Ho Chg. as Donation. Customers Should Read Contract Over carefully before signing and should obtain a duplicate from Agent.

All goods are made special to order and cannot be cancelled under any condition. H. B.—This contract is binding when signed by the customer, and the agent accepting same, by signing it binds the Goodyear Hospital Rubber Co. Hame of Institution: Hotre Dame College. Signature of Purchaser: Sr. M. Florentine. J. S. Holstein, Agent/1 •He further testified that he was at Rotre Dame College about an hour and a half; that he did not know the name of the Sister Superior until she signed the contract; that the water bottles, ice bag’s and invalid ring were shipped to Rotre Dame College by express and received by the defendant, and that the other goods mentioned in the order or contract were shipped by freight and tendered to the College; that it took 2980 pounds of matting to fill the order which at thirty cents a pound amounted to $894.00, and that the amount due plaintiff for the goods ordered was $900.15.

On cross-examination he testified as follows: “Q. Who is the Goodyear Hospital Rubber Company? A. The Goodyear Hospital Rubber Company is a concern in Hartford, Connecticut, owned by R. R. Kusnitt. Q. Who did you tell the Sisters of Rotre Dame the Goodyear Hospital Rubber Company was ? A. I did not make any assertion who' it was.

Q. Did you tell the Sisters of Rotre Dame who you represented? A. Yes; the Goodyear Hospital Rubber Company of Hart ³²⁷ ford, Connecticut. Q. Did you tell them what it was ? A. A rubber concern.

Q. Did you tell the -Sisters of Notre Dame at the time plaintiff’s exhibit No. 1 (the contract or order for the goods) was signed that the Goodyear Hospital Rubber Company was a large firm or corporation in which you were interested as an officer ? A. No, sir; I did not. Q. Didn’t you tell them that the reason for your making these remarkable low prices for the goods offered to be sold was because the winter season was approaching and you had a large factory, and in order to keep the men employed during the winter you offered these prices which were virtually cost prices? A. I made the assertion that to keep our factory busy during the winter season, that was the reason I gave for these low prices and it was true; but any factory we buy goods of is our factory.

Q. Then, as a matter of fact, at the time you made that statement to the sisters, you did not have a factory did you ? A. We call it our factory when we are under contract to buy certain out-put. Q. Did Reuben R. Kusnitt on the 28th of October*, 1913, own any factory? A. He did not own a factory.

Q. There was no such corporation as the Goodyear Hospital Rubber Company ? A. Well, we did not claim that it was a corporation. Q. Did you tell the School Sisters of Notre Dame at the time this contract was entered into that R. R. Kusnitt was the Goodyear Hospital Rubber Company ? A. I did not, because' I did not deem it was necessary.

Q. Did you tell them at that time that you were selling these goods below their real value? A. I did, and so they were. Q. And didn’t you tell them that the members of the corporation that you represented would raise a racket with you, but that you would stand for it, or words to that effect ? A. I do not recall any such statement.

Q. Didn’t you tell them that you were selling these goods at that price so as to- keep your men employed during the winter season ? A. I did.” After stating that the three sisters he mentioned were not together when the contract was signed; that it was signed “in triplicate”; that Sister Florentine left ³²⁸ the room while he was-packing his goods, and that he left a signed copy of the contract in the room for her, he was shown the following letter which he said was a letter from the Goodyear Hospital Rubber Company: “Goodyear Hospital Robber Co., Hartford, Oobtbt. Goodyear’s Famous Rubber Goods of Every Description. Hotre Dame College, Hovember 17th, 1913.

Charles Street Ave.,' Baltimore, Md. Rev. Sister M. Florentine, Supr. Dear Madam: Please find enclosed copy of your contract, which is exactly as the original. This matting is for your stairs in back of building. You will also find enclosed bill of lading for matting shipped today.

Respectfully yours, Goodyear Hospital Rubber Co., RRK/H. By R. R. Kusnitt, Manager. Enclosures.” ' The witness stated that that was the way the plaintiff usually signed; that the goods referred to were shipped from the warehouse of the plaintiff at 46 Village Street, Hartford, Connecticut, and further testified as follows : “Q. That is not yo-ur warehouse now ? A. Ho, sir. Q. Who, as a matter of fact, manufactured these goods ?

A. The Goodyear India Rubber Glove Company of Maggatuck, Connecticut, manufactured part. Q. What part did the Goodyear India Rubber Glove Company manufacture? A. The sundry parts— the ice and water bags and the invalid ring. Q. And who manufactured the other part?

A. The people who make the same stuff, the Goodyear—the genuine Goodyears. Q. What is the name of that concern? A. The Jersey Oar Spring and Rubber Company of Jersey City, H. J. Q. They manufactured all the matting? A. Yes, sir.

Q. Who are the 'genuine’ Goodyear Rubber people? A. Well, there ³²⁹ are 150 Goodyears in the United States; that is an uncopyrighted name. Q. 150 of them in the United States? A. Yes; I guess you could count a thousand.

Q. Well, why do you call them genuine if there are one hundred and fifty of them ? A. That is too mnch for me to answer; they are all genuine.” Sister Mary Elorentine, when asked to state the circumstances under which she signed the contract, said: “On the 28th of October, 1913, the portress telephoned to my office telling me that there was an agent in the parlor exhibiting rubber goods, or wanted to sell rubber goods. I came over and found Mr. Holstein there, and he showed me some ice bags and water bottles. I thought they would be of use in the infirmary.

I sent for the infirmarían, Sister Mortana, and asked her if she would like to have some of them, and she stated that she would like to have one-half dozen of each. He spoke of the matting and- told us what it cost. Then he said: ‘In the meantime, you are going to take these anyhow, so sign for these.’ I signed for the ice bags and water bottles, and so did he. Then Sister Mortaná took him to the back stairs, and he came back again, and I don’t know whether he told me how many steps there were, but I think there were about 130 to a stair.

He said it would be $1.25 a step. I said: ‘Oh, no; we could not spend that much money; it would be about $300.00,’ and he said: ‘Oh, no; it will not be more than $150.00 or $200.00.’ Then I sent for Sister Meletia and spoke to her about it, and she advised not to. do it, but he insisted it would not be over $200.00; so I sent him out with another sister to measure the stairs, and I thought he was about to fill out another paper when I was called out. I returned later and I found him on the way to the door. I went to the portress and asked her whether the man had left a paper for me and she said no.” When asked if she got a copy of the order she said, “Ho, I got no copy; there was no copy left.

I looked in the parlor where he was and there was no copy. Then it struck me that perhaps ³³⁰ he had written the order on the same paper which I had signed for the water bottles and ice bags, and I was very much troubled about it, and I wrote a registered letter to be sure that he would get it countermanding the whole order.” Plaintiff’s counsel was then asked to produce the letter, and he said he had no letter dated October 28th, but produced one dated October 29th, which the witness said was the letter she referred to and which is as follows: “College of Motre Dame of Maryland, Charles Street Ave., Baltimore. Goodyear Hospital Rubber Co., Hartford, Conn. Gentlemen: This jnorning a representative of your Company called regarding rubber goods.

We gave him an order for % dozen ice bags and % dozen water bottles. We also gave him an order for rubber for our bach stairs. We had no idea that it would cost so much, but since he left we calculated and find it would be more than we can afford to spend for the next two years. We now recall the order for the rubbers for stairs.

You may send us the water bags and the hot water bottles, but consider the order for the rubber for stairs cancelled for the present. We may get it later, but not now. Yery truly, Oct. 29th, ’13.” Sister Mary Elorentine.'” Sister Elorentine stated that the letter was written cn the same day that the contract was signed, and that she received a reply to it from the Goodyear Hospital Rubber Company, but had mislaid it and could not find it. Counsel for the plaintiff produced the following copy of it, which the defendant offered in evidence: “Hartford, Conn., October 30, 1915.

College of Hotre Dame of Maryland, Rev. Sister Mary Elorentine, Superior, Charles Street Ave:, Baltimore, Md. Dear Madam: We have just received your regis ³³¹ tered letter at 4.15 this aftenroon, in which you state that you wish to cancel your order for rubber matting to some date in the near future. We are very sorry we cannot comply with your wishes, as your order has gone into the works last night and stock is being made up for your contract and will be ready for shipment within a few days, as our factory is working day and night. You have bought these goods at a very low figure and there ought to be no reason why they should not last as long as the institution does. The matting is guaranteed for twenty-five years.

Thanking you for your kind order and hoping that our business relations will be the same in the future as they have been in the past, we beg to remain, Respectfully yours, Goodyear, Hospital Rubber Co., ■ Manager.” The defendant then offered in evidence further correspondence with the Goodyear Hospital Rnbber Oompanv, in which she asked for a copy of the contract, and then Sister Florentine further testified that after she. received the telegram she sent two of the sisters np to Hartford, Connecticut, to make inquiry concerning the company, as she was “very doubtful about it”; that at the time she signed the contract the only items it contained were the one-half dozen hot water bags at $25.00 per dozen and one-half dozen ice bags at $15.00 per dozen; that she did not know that the other items were put on that paper, but thought he was putting them on another to be signed; that Mr. Holstein told her that the matting for the back stairs would not cost $300.00 and perhaps not $200.00; that there were about 130 steps in each flight of stairs, or about 260 steps in the two flights, and that at first he spoke of the matting costing about $1.25 a step; that she calculated and saw that it would be about $300.00, and he said, “Oh, no ; possibly 50 or 15 cents each, ³³² and they will not he more than $200 and possibly only $150”; that she did not receive a copy of the contract from the defendant until she received the bill for the goods and the bill of lading in the letter of Hovember llth, 1913; that when the goods arrived by freight she consulted an attorney, who advised her not to receive them, and that she then telephoned to the station and advised the railroad company to return them, and that she thought the railroad company had done so until a few days later when she received a postal from the terminal warehouse saying that the goods were there and would be sold .at auction in a few days; that she then called up Camden Station and asked them why they did not return the goods, and they said that they had written to Hartford, but had gotten no answer; that at the time she ordered the goods Mr. Holstein told her that he was a member of the Goodyear Hospital Rubber Company; that he was the only one who could give them the rubber at such reduced rates, and that when he went back to Hartford they would call him down for it; that the reason he did it was because the factory had a great many men and they did not have much to do at that time of the year; that she asked him if the factory was in Hartford, and he said no, it was right outside of Hartford; that she never heard of Mr. Kusnitt, and never heard his name; that Mr. Holstein told her that the Goodyear Hospital Rubber Company was a company—a corporation—of which he was a member, and that she therefore ordered the goods from him. On cross-examination she stated that the School Sisters of Hotre Dame is a corporation, and controls and operates the Hotre Dame College; that she is the President and Treasurer of the College, and is called the Superior; that the only items in the contract when she signed it were the water bags and ice bags, and when asked if she had received them she said a box came to the college during her absence by express and was received by one of the sisters, probably the portress; that it had never been opened, and was still at the college, and that she had never ³³³ offered to return it to the Goodyear Hospital Rubber Company; that Mr. Holstein told her that the Goodyear Hospital Rubber Company was a company, or a firm, and that he was one of the members, and that it had a factory outside of Hartford; that he said he had a number of men engaged in the factory, and that they did not have much work to do at that season, and that that was the reason he could give her the rubber cheaper; that he said the company had the factory and that it was run by their men and that they paid them; that she could not say positively that he used the word “corporation,” but that he did use the word “firm or company.” The testimony of Sister Florentine in regard to the circumstances under which the contract was signed by her, and the items it contained when she signed it, etc., was corroborated by the testimony of the other two sisters who were present, and Sister Meletia, who was the Dean and Secretary of the college, further testified that she recollected very positively that Mr. Holstein said -that the Goodyear Hospital Rubber Company “was a corporation”; that she inquired about the “peculiarity of the name,” and that he said “a corporation had the right to any name that they liked”; that she asked how he could give rates that seemed to her “preposterous,” and that he said he was allowed to do that because they “had a big concourse of men, and they were dull at that season, and it was better to get a little something than nothing”; that on Hovember 13th she went to Hartford, Connecticut, taking Sister Mortana with her, to find out about the Goodyear Hospital Rubber Company, “because she felt convinced that there was some chicanery about the transaction, and she thought that if she could meet the president of the corporation she could have an understanding with him”; that she found no institution at all of that name, although she made careful inquiry; looked at the city directory and the telephone directory; went to every shop that had the word “Goodyear attached to it or where rubber goods were sold,” inquired at the City Hall and at police headquarters, and asked “the head man at the Post ³³⁴ Office”; that while she was in Hartford she telephoned to Mr. Holstein’s house, and spoke to a woman who said she was Mrs. Holstein, and that she told her that Mr. Holstein was in California or Wyoming and would not return for several months; that she asked her if there was not someone to represent him, and that she replied that unfortunately there was nobody in town j that she then asked her if there was not an office or warehouse or some place where she could meet the officials of the corporation, and that Mrs. Holstein replied there was a warehouse, but that it was very dilapidated and in a miserable part of the town.