Baltimore Mach. & Equipment, Inc. v. Holtite Mfg. Co., 60

• Decision Date: 20 December 1965
• Docket Number: No. 60,60
• Citation: 215 A.2d 458,241 Md. 36
• Parties: , 3 UCC Rep.Serv. 36 BALTIMORE MACHINE & EQUIPMENT, INC. v. HOLTITE MANUFACTURING CO., Inc.
• Court: Maryland Court of Appeals

Page 36

241 Md. 36

215 A.2d 458, 3 UCC Rep.Serv. 36

BALTIMORE MACHINE & EQUIPMENT, INC. v. HOLTITE MANUFACTURING CO., Inc.

No. 60.

Court of Appeals of Maryland.

Dec. 20, 1965.

John T. Enoch, Baltimore, (Goodman, Meagher & Enoch, Baltimore, on the brief), for appellant.

Donald N. Rothman and David H. Fishman, Baltimore, (Gordon, Feinblatt & Rothman, Baltimore, on the brief), for appellee.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, OPPENHEIMER and McWILLIAMS, JJ.

HAMMOND, Judge.

Baltimore Machine and Equipment, Inc., a maker of tools and machinery, sued Holtite Manufacturing Co., Inc., a manufacturer of heels and soles for shoe repairers, on the common counts and a special count claiming that Holtite had refused to pay for a number of dowel pullers (which Holtite intended to supply to shoe repairers for use in pulling spiked heels from ladies' shoes) which Baltimore Machine had manufactured on order especially for Holtite and which had been delivered to Holtite.

After trial without a jury, at which Holtite's defense was that the dowel pullers were found to be defective and to have broken and crumpled in use, Judge Sodaro gave judgment for Holtite without stating the grounds for his decision. It is to be regretted that counsel did not act under Maryland Rule 564 b 2, as should always be done if an appeal is likely, and move that the trial court dictate or prepare and file '* * * a brief statement of the grounds for its decision * * *' since we are called on to decide the case on a record which contains no finding of fact and no expression of what law Judge Sodaro felt to be controlling.

The parties have briefed and argued the case on the mutual assumption that the decisive questions here, as they were below, are whether the sale of the dowel pullers by Baltimore Machine to Holtite was a sale by sample with an attendant statutory warranty that the bulk would correspond with the sample in quality, or a sale of future goods to be approved by the buyer, and that Judge Sodaro either found the sale to be by sample and Holtite to be entitled to rescind because the dowel pullers did not conform to the warranty of quality, or that he found the sale to be one of future goods with no attendant warranty. The evidence supported a finding that the sale was by sample and that Holtite was justified in rescinding the transaction on the ground that the dowel pullers delivered to it did not conform in quality to the sample. Whether or not these were the reasons Judge Sodaro rendered judgment for Holtite, we shall affirm because the record offers a basis for determining that Holtite was entitled to prevail. See Casey Development Corp. v. Montgomery County, 212 Md. 138, 129 A.2d 63, and other cases cited in 2 M.L.E. Appeals § 323.

The Uniform Sales Act which was in effect when the transactions under review took place provided in Code (1957), Art. 83, § 34, that in the case of a contract 'to sell or a sale by sample,' there is an implied warranty (a) that the bulk shall correspond with the sample in quality; (b) that ordinarily the buyer shall have a reasonable opportunity of comparing the bulk with the sample; and (c) if the seller is a dealer in goods of that kind, that the goods shall be free from any defendant rendering them unmerchantable which would not be apparent on reasonable examination of the sample. The Act, in § 87 of Art. 83 of the Code, provided that where there was a breach of waranty, the seller, as one of his remedies, could rescind the contract to sell or the sale or, if he had already received the goods, could return or offer to return the goods and recover what he had paid the seller. The Act did not define a sale by sample, but his Court did in Gunther v. Atwell, 19 Md. 157, 167-168, where it was held that at common law a contract of sale by sample was not a warrant of quality but an agreement of the seller to deliver and of the buyer to accept goods of the same kind and quality as the sample. The Court went on to say:

'The rule * * * seems to be * * * that to fulfil a contract of sale, the seller must deliver that which he has agreed to sell, and that if he does not, the purchaser may rescind the contract, or receive the goods and claim a deduction for their relative inferiority in value. In order that this principle may be applied, it is necessary, in making the sale, that the sample should be so used between the buyer and seller, as to express or become a part of the contract; or, in other words, that the sample should amount to, and take the place of, an express averment by the seller of the condition and quality of the goods sold, upon which the buyer relies in making the purchase. The mere exhibition of a sample by the seller, and examination of it by the buyer, does not amount to such an averment, unless, from all the facts or circumstances in the case, it can be presumed that an understanding is arrived at between the parties, that he bulk is to correspond with the sample. Berine [Beirne] v. Dord, 1 Seld. [N.Y.] 73, 93. Waring v. Mason, 18 Wend. [N.Y.] 425, 434. The reasonable deduction from these cases is, that to effect a sale by sample, so as to bind the seller for a correspondence in bulk, it must be shown that the seller adopts the sample as his own description of the bulk, and that the buyer concludes the purchase upon the faith and credit of the description so given.'

In 1959 Holtite's source of supply of dowel pullers (which has proved satisfactory) went out of business and it asked a Mr. Breidenbaugh who was associated with a local maker of tools and machinery to make replacement parts for the pullers. He did so and they also proved to be satisfactory. Holtite then gave Breidenbaugh an order for one thousand of the dowel pullers after he had made 'a hand sample' which Holtite inspected and approved. Breidenbaugh became financially unable to proceed and recommended Baltimore Machine as a replacement. He brought Mr. Harbaugh, its plant manager, in to see Mr. Esterson, Holtite's vice-president. After Harbaugh inspected Breidenbaugh's hand sample, he said Baltimore Machine could make such appliances. Esterson then gave to Baltimore Machine an order for one thousand 'portable dowel pullers' to cost $4.89 each (Baltimore Machine became obligated to pay Breidenbaugh seventy-five cents per puller) and 'to be designed by Mr. Breidenbaugh, similar to sample submitted but to be approved after tooling, before production.' Breidenbaugh turned over to Baltimore Machine his hand sample and a die for use in making the legs of the pullers and it then made three additional dies for use in the manufacture of other parts of the device. Baltimore Machine then made one puller from the production dies and took it and Breidenbaugh's sample to Esterson, who compared the two and found them alike and then, in the words of Harbaugh, 'Mr. Esterson had some heels. He pulled some heels and he thought it worked all right,' and in response to Esterson's request for speedy delivery, Harbaugh promised to deliver fifty pullers as soon as possible. When the fifty were delivered, Esterson noticed that they were not exactly like Baltimore Machine's production imitation of Breidenbaugh's hand sample in that the legs of the frame were too long in relation to the ratchet, with the result that the ratchet would not reach short heels. Harbaugh said this defect could be cured by replacing the ratchet or by shortening the legs and did the latter. When the reworked fifty pullers were delivered to Esterson, he checked the length of the legs and, according to him, assumed, as his visual inspection seemed to indicate, that all else was in order.

In our view it could properly be found, as Judge Sodaro appears to have done, that Baltimore Machine represented to Holtite that the pullers it would deliver would fit the description Holtite saw in the production model exhibited to it and that Holtite accepted this representation as part of the basis of the bargain and thus concluded its purchase upon the faith and credit of the impression produced by the production model, with the result that there was a sale by sample.

Baltimore Machine says that this could not be so because the Breidenbaugh sample was only to be a guide to suggest to Baltimore Machine a similar form of puller and therefore there was no sample in existence when the order was given, and that the sale was one of future goods to be accepted or rejected by Holtite on subsequent inspection.

Neither contention is sound. Although the order for the one thousand pullers was placed before the production model, which was the sample, was produced by Baltimore Machine, it was conditioned upon approval by Holtite 'after tooling [but] before production.' When approval was given after...