United Railways & Electric Co. v. Henry Wehr & Co.

³³² Boyd, J., delivered the opinion of the Court. This is a suit by the appellees against the appellant for an alleged breach of contract by the latter, in refusing to deliver certain scrap iron to the former, or to permit them to remove it from the power house of the appellant. The power house was destroyed, or at least very seriously damaged, by the great fire in Baltimore in February, 1904. The appellant, through a letter of its purchasing agent, dated June 7th, 1904, invited a bid from the appellees for the scrap iron, and they made an offer by letter dated June 14th, which was accepted by telephone.

The Court granted three prayers and a motion to strike out certain testimony offered by the plaintiffs and rejected four prayers offered by the defendant. The only bill of exceptions in the record presents the rulings of the Court on the prayers and that motion. The case was tried before the Court, sitting as a jury, and resulted in a-verdict in favor of the plaintiffs. This appeal was taken from the judgment rendered on that verdict.

Other questions presented by the record being of minor importance, we will first consider the plaintiff’s motion to strike out the testimony, in connection with their fourth and the defendant’s second prayer. The motion granted was “to strike out all testimony of the witness Staub so far as said testimony is’ offered for the purpose of establishing terms of the contract between the plaintiffs and defendant by means of conversations had prior to the writing of the letter of June 14th.” The plaintiff’s fourth prayer prayed the Court to rule “that by the true construction of the contract between the parties, the plaintiffs bought and the defendant sold all the scrap iron in the Pratt street power house of the defendant (not excepting the boiler room) save the material excepted in the letter of June 7th, 1904, from Staub to the plaintiffs;" and the defendant’s second prayer asked the Court to rule as a matter of law that all of the terms of the contract “are not contained in the letters of June 7th and 14th” (and that) “it is the duty of the Court, sitting as a jury, to find from all the evidence in the case what the contract was, and in so doing it can consider ³³³ all the evidence in the case, written as well as oral.” The quotations from those prayers and the motion suggest the theories of the respective parties, and it is only necessary to add that the principal question is whether oral testimony was admissible to show that the appellant did not sell to the appellees the structural iron in the part of the power house known as the boiler house. ’ As the motion to strike out the testimony goes to the root of the controversy, we will first consider that. Mr. Staub was the purchasing agent of the defendant, and as such wrote the following letter dated June 7th, 1904, to the appellees: “Gentlemen: I would be pleased to receive from you bid for the scrap iron, not including engines, generators, valves or piping, in our damaged Pratt street power house, same to be made at a price per ton as the scrap lies. The weights on our scales at the power station to govern.

The successful bidder must be prepared to make a payment, satisfactory to us, in advance, and when material to this amount has been received, make another payment in like manner, and so on, until the entire lot has been received and paid for. The company reserves the right to reject any and all bids, also to retain any part of this material, as it is turned over,-that it may consider what can be used by it. Your proposition must be in my hands not later than twelve o’clock noon, Tuesday, the 14th instant. I will gladly furnish any further information you may desire in connection with this matter.” Henry Wehr, one of the appellees, by appointment met Mr. Staub at the power house for the purpose of seeing the scrap, with a view to making a bid, and on June 14th wrote the following letter to him: “Dear Sir: Replying-to yours of June 7th we are pleased to offer you $9.00 per gross ton for a'l the old material which you have for sale at the Pratt street power house, as per specifications mentioned therein.

Advise us promptly by return mail whether this offer is accepted or not, and oblige.” That bid was accepted about June 17th over the telephone. ³³⁴ If the letter of June 14th had omitted the words “which you have for sale” and nothing had occurred but the writing of the two letters and the acceptance by telephone, a very different question from what the record presents might arise. But Mr. Wehr testified that he went to the power house to make an examination — that “his purpose in making this examination was to see what had to be sold, because you cannot buy things in scrap iron unless you look at them;” that “Mr. Staub pointed out what was for sale and what was not for sale; he bought everything that was left in the iron line, with the exceptions he made.” Again he said “that his offer of June 14th of $9 a ton was the resulting bid from his examination of the premises * * * in making his bid of $9 per ton he considered that he would not have to wreck the power house; that the railway company would have to take the power house down; he explained this fully to Mr.- Staub, saying, when you get to work to take the power house down, leave that work there, and we will work with you.” His cross-examination as stated in the record concludes thus: “When asked how much it would have cost- to have wrecked the building and get out .the structural steel, he replied he did not have to wreck the building under his contract, they-were to take the building down, and he was to work at that time and cut out the structural material as they went along; that this understanding was had with Mr. Staub, the only person he dealt with; this understanding was had when he first went through the building with Staub and not at the time of the acceptance of his offer; that Staub agreed on behalf of the railway company to tear down the building and give him the structural steel, as it was taken down.” Mr. Staub testified amongst other things that “the first response received from H. Wehr & Co. was the request by Mr. Harry Wehr to meet him at the power house and designate exactly what was covered by the letter; that he met Mr. Wehr and took him over .and showed him exactly what was to go; that the meeting with Mr. Wehr was in the interval between the time the request for the bid was sent and. the receipt of ³³⁵ the bid on June 14th.” Again he said, ‘‘But in no case was he taken into the boiler room, because that was not included; that the engine room is separated from the boiler room by a brick wall running north and south, which was standing at the time of the visit, and.apparently had not been injured; that he did not take Mr. Wehr into the boiler house at all; that the purpose of the visit was to point out to Mr. Wehr exactly what he was to bid on.” On cross-examination he said the boiler room was not mentioned in the conversation with Mr. Wehr, and in answer to a question, “Why was the boiler room not included, what reason have you for seeking to give us the impression that the boiler room was not included in the sale of scrap iron at the power house?” he replied, “Because the boiler room was considered by our people intact, not damaged.” He was corroborated by other witnesses as to the condition of the boiler house. Mr. Wehr and Mr. Staub contradicted each other flatly as to the boiler room and some other matters, but we see from Mr. Wehr’s own testimony that he went to the power house for the purpose of ascertaining what was to be sold, and its condition, and that Mr. Staub pointed out “what was for sale and what was not for sale.” That being proven by one of the plaintiffs, and especially as his testimony was permitted to remain in why should that of Staub have been stricken out? The letter of June 7th concluded by saying “I will gladly furnish any further information you may desire in connection with this matter.” Wehr did call upon him for further information, and Staub pointed out what was for sale and what was not, and then the appellees wrote the letter of June 14th, in which they bid “for all the old material which you have for sale at the Pratt street power house, as per specifications mentioned therein.” The words “which yon have for sale” meant something, and when taken in connection with the testimony of both Mr.Wehr and Mr. Staub were of the utmost importance in determining the controversy between these parties.

The letter concluded by saying “as per specifications mentioned therein,” referring to the letter of June 7th, but it cannot be and is not ³³⁶ pretended that there were such specifications in that letter as were necessary to inform the appellees- what was for sale. Mr. Wehr’s evidence is to the contrary, and he went to the power house for the very purpose of finding out and to enable him to bid intelligently, if at all. The “Old material which you have for sale,” certainly did not mean something which the company did not have for sale, and inasmuch as it is conceded that what was for sale was pointed out, but the two contracting parties differ as to what that was,- it is difficult to understand how that could be determined without oral testimony. It was necessary to show what was for sale — what was pointed .out — in short what the appellees were offering to buy in the letter of June 14th, and what the appellant’s agent agreed to sell when he accepted the offer by telephone.

But apart from what we have said, how could the plaintiffs recover for the structural material still attached to the building on June 14th without oral testimony? Mr. Wehr testified that Mr. Staub agreed that the company would tear down the building and give them the material, as it was taken down. There is nothing whatever in the letter of June 14th on that subject, and Mr. Staub swore that “no such arrangement was made.” Yet the motion granted by the Court was comprehensive enough to exclude his evidence on that subject, while that of Mr. Wehr still remained in. It may be said that the defendant did not ask to exclude the. evidence of Mr. Wehr, but we do not find in the record that any of this evidence was admitted subject to exception, Or that it was admitted upon the assurance of counsel that it would be followed up by other testimony which would show it to be proper, or that the right to move for its exclusion had been reserved.

The general principle is well settled that unless evidence is. objected -to when offered, it cannot be afterwards excluded, unless its inadmissibility is not apparent at the time it was offered and when that appears it is objected to within a reasonable time. Without deeming it necessary to depart from the main question and determine whether it was too late to entertain this motion, if