Webster v. P. W. Moore & Son

Pearce, J., delivered the opinion of the Court. This is an action of assumpsit by the appellees to recover for 500 cases of canned tomatoes sold and delivered to the appellant. Both parties are packers of canned goods residing .in Dorchester County, Md., the plaintiffs at Cambridge, and the defendant at East Newmarket. The memorandum of the contract, executed in duplicate, is as follows: “Bought of Mess.

P. W. Moore & Son, Cambridge, Md. For account of Mr. Chas. Webster, East Newmarket, Md. 2,000 c’s No. 3 Standard Tomatoes at 77^c per dozen f. o. b. Cambridge, Md. Cash less 1 yi % in ten days from prompt shipment. Buyers labels to be put on free with an allowance of 90c per M. Subject to approval of samples submitted on September 8th, 1906.

Prompt shipment of labels. h Accepted this 8 day of September, 1906. Chas. Duplicate l Webster' Buyer' P j Accepted this 8 day of September, 1906. P. W. J Moore & Son, Seller.” The sale wes made through Edgar B. Simmons, a canned goods broker, of Cambridge.

The samples mentioned in this contract were duly submitted, and were approved on Tuesday following the 8th of September. Some days later, one case of 24 dozen cans No. 3 standard tomatoes were gotten by Simmons from the plaintiffs, to be.used as samples by defendant in a contemplated sale by him to Austin Nichols & Co. of New York, but it does not appear that the plaintiffs knew to whom these smples were to be sent. On September 14th the plaintiffs received a letter of that date, purporting to be signed by Simmons, but written and signed in his absence, and without his knowledge, by a clerk ⁵⁸⁷ in his office, saying, “I am in receipt of a letter today from Mr. Chas. Webster, saying the samples you sent him were not approved, as they were watery and juicy, and requested me to see you and get you to send him more samples.

So please send him another lot of samples at your earliest convenience, and oblige yours truly.” Between September 8th and 14th the price of canned tomatoes had materially advanced. On September 15th, the plaintiffs wrote Simmons, “Yours of the 14th inst. received, saying that Chas. Webster did not approve the samples sent him; that they were too juicy; and as the contract claimed approval of samples, and prompt delivery of labels which have not yet arrived, we therefore deem the contract broken, and the aforesaid instrument is null and void. P. W. Moore & Son.” On September 18th Webster and Simmons went together to see plaintiffs ahout the performance of the contract, and Webster told them he had not rejected the tomatoes, and insisted on their delivery; that Austin Nichols & Co., to whom the last samples had been sent, had nothing to do with the contract in question; that he, Webster, was the purchaser and was perfectly satisfied with the tomatoes; that he then proposed the tomatoes should be delivered in car lots — 500 case lots — f. o. b.

Cambridge, payment for each car to be made on receipt of bill of lading (thus modifying the terms of the memorandum of sale). The plaintiffs did not then agree to this proposal, but did so agree on the following day, and so notified Webster by ’phone, and that the memorandum of September 8th was to be the guide as to kind and quality of goods. Two car loads of 500 cases each were accordingly shipped on October 2nd and 8th respectively, and payment therefor was made on receipt of bill of lading. A third car load was shipped on October 23rd, and bill of lading mailed to Webster, who refused to pay the contract price therefor, because he claimed to have discovered since paying for the two car loads, that neither these, nor the third car were of the contract quality, whereupon the plaintiffs re ⁵⁸⁸ fused to deliver the fourth car, though Webster demanded delivery thereof.

The present suit is for the contract price of the third car, and for the last mentioned case of samples. Webster claims to recoup against the price of the third car, the damages resulting from the alleged inferiority of all three cars and from the non-delivery of the fourth car. The nar contains only the common counts and the pleas are the usual general issue pleas. The verdict and judgment being for the plaintiffs for the contract price of the third car load, and for the value of the last case of samples, the defendant has appealed.

Sixteen exceptions were taken, fifteen to rulings upon evidence, and one to the ruling on the prayers. The first exception was to the admission of the letter of Simmons of September 14th above quoted, in connection with the offer to show that Simmons was defendant’s agent. Simmons himself testified that he represented both parties as broker, though his brokerage was paid by the plaintiff in accordance with the custom in such transactions. The manifest purpose of the introduction of this letter by the plaintiff was to lead the jury to believe, as the plaintiff may have believed, .that Webster had rejected the samples submitted September 8th as the standard for the 2,000 cases then purchased, and thus to justify the plaintiffs in their attempted cancellation of that contract.

Staniing alone, and unexplained, it certainly tended to support the plaintiffs view, and we perceive no error in its admission. After Perry W. Moore, one of the plaintiffs, had given his version of the transaction on examination in chief, his counsel then asked him, “What does Mr, Webster owe you ?”■ to which question the defendant objected, but the Court overruled the objection, and after exception taken by defendant, the witness answered, “He owes us for 501 cases of tomatoes at 77%c per dozen.” This constitutes the second exception, the ground being that the purpose of the question and •the result of the answer permitted, was to enable the witness to give his opinion and decision upon the precise question .which was for the determination of the jury from a consider ⁵⁸⁹ ation of all the facts and circumstances in the cáse. If such' was the purpose and effect of the question and answer, the-ruling would be erroneous, as was held in Belt R. R. Co. v. Sattler, 100 Md. 335 , and in Western U. Tel. Co. v. Ring, 102 Md. 681 .

But we do not think such was either the purpose or effect of the answer elicited. There was no dispute here that 501' cases of tomatoes had been sold at 77 c per dozen, had been delivered, and had not been paid for in whole or in part. The only open question under the pleadings and • evidence for the determination of the jury, was what abatement, if any, the defendant was entitled to from the contract price of these 500 cases, by reason of the alleged inferiority of the 1,500 cases delivered, and the non delivery of the remaining 500 cases, The question, we think, was equivalent to-asking what the plaintiff claimed to have been delivered, and not paid for, and the answer given would have been strictly appropriate and responsive to such a question. Viewed in that light, this exception bears no analogy to those in the two-cases relied on and cited above, and is not within the reason on which they were decided.

It would be a narrow and arbitrary construction of that question and answer to hold that there was reversible error in their admission. The third and fifth exceptions raise but one question. In the third, Simmons was asked “what was the value at Cambridge of No. 3 standard tomatoes, f. o. b. cars on September 8th, 1906,” for the purpose of showing that the contract price was the full market price. The plaintiff objected, but conceded that the contract price was the full market price that, day, and the Court sustained the objection.

In the fifth exception while the deposition of a Mr. Jessup,, taken under a commission, was being read, the following question was read, “What was the value of 3ft». standard-tomatoes at Cambridge f. o. b. September 8th, 1906.” The-answer in the deposition was, “75 cts.” The plaintiff objected, to the question; though the defendant stated he expected to-show by the answer that he had agreed to give a price equal to the market price of that day, and the Court sustained the. ⁵⁹⁰ objection on the ground that the matter thus proposed to be proved had already been conceded when the ruling on the third exception was made. Upon principle it would seem that there ought not to be laid down a hard and fast rule compelling a party, against his will, to accept his adversary’s concession of a bare fact sought to be proved, in lieu of the evidence by which the fact is proposed to be established. There are, no doubt, cases in which no actual injustice would be worked by such a rule, but there are others in which the .strength of a proponent’s case would be greatly weakened by its application.

The appellant has cited four cases in support of these exceptions, all from the Michigan Court, viz.: John Hancock Co. v. Moore, 34 Mich. 41 ; Kimball Co. v. Vrooman, 35 Mich. 310 ; Decamp v. Schofield, 75 Mich. 449 , and Baumier v. Antiau, 79 Mich. 509 . In the first and second of these cases the concession would have operated to exclude record or documentary evidence. In the third, it was held that the conceding of a valuable consideration for a written promise, cannot deprive the promisor of the right to prove what the consideration was; and in the fourth it was held that though the defendant offered to admit that the plaintiff was kept out of possession of certain premises by him, plaintiff was entitled to give evidence of the fact and of the attending circumstances, the Court in that case using this emphatic language: “The right of a plaintiff to present his proof to the jury in his own way, subject to the rules of evidence, is a substantial and important one, of which he cannot be deprived by the proffered admission of the defendant.” If this is the plaintiff’s right, it is equally the defendant’s right —the rule must be applicable to both parties alike. We have not been referred to any other decisions in point, and we have discovered none, nor have we found any consideration of this question in the text books or encyclopedias.

The excluded answer showed that the contract price was 2j^c above the market price of that day, and thus illustrates the obvious difference in effect in some cases between a naked concession of ⁵⁹¹ a fact, and the production of the evidence by which the fact is proposed to be established. We have not had pointed out to us any specific injury worked to the defendant in this case, by, the ruling complained of, and in the absence of injury the error cannot be held reversible; but we cannot give our sanction to the laying down of a general rule which would deprive a party of his right to produce to the jury in his own time and way the evidence upon which he relies, and which is legally admissible for that purpose. The seventh, eighth, tenth, eleventh, thirteenth, fourteenth and fifteenth exceptions may be considered together. They all relate to the admission of testimony by which the plaintiff sought to show that the 1,500 cases delivered were No. 3 standard tomatoes such as the contract specified.

In the seventh, one of the plaintiffs was asked to state “how they packed their tomatoes in 1906, and the grade and quality of the whole pack for that year.” The answer was that the whole pack was by hand, by girls, who weighed 34 oz. of tomatoes in each can; that witness personally supervised this packing, and that each day’s pack was^ examined as packed, and that all were standards No. 3 of fair quality, except the last day’s pack which were kept in a separate house, and