Bostain v. De Laval Separator Co.
| Decision Date | 18 January 1901 |
| Citation | 48 A. 75,92 Md. 483 |
| Parties | BOSTAIN et al. v. DE LAVAL SEPARATOR CO. |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city.
Action by the De Laval Separator Company against Bostain & Kinstler. From a judgment in plaintiff's favor, defendants appeal. Reversed.
Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, SCHMUCKER, and PEARCE, JJ.
George Weems Williams and Philip Bartley Watts, for appellants.
George Whitelock and J. Hanson Thomas, for appellee.
The appellee conducts at Poughkeepsie, in the state of New York the manufacture of machines known as "separators," which are used to separate cream from milk. The appellants are residents of Baltimore city, but they carry on a dairy farm and creamery at Delta, in Pennsylvania. The appellee sued the appellants in the superior court of Baltimore city for the price of two separators which it had sold to them on approval, and which it claimed they had approved. The appellants, having filed general issue pleas to the action admitted at the trial that they had purchased the separators on approval, but insisted that after a fair trial they had rejected them. The main issue thus practically became one of the approval or rejection of the separators by the appellants, and it was finally narrowed down to the question whether they had given notice of their disapproval of the separators to the appellee within a reasonable time after the expiration of the period allowed for approval. There was evidence tending to prove the following facts: The appellants were, by the terms of the sale, to have 30 days after the separators were set up in their creamery for their approval. One of the separators was set up in the creamery on April 5, 1899, with the understanding that the sale of both was to depend upon the approval of that one. On May 2d, a few days before the expiration of the 30 days allowed for the approval of the sale, Mr. Savage, the traveling representative of the appellee, met one of the appellants in Baltimore, and it was then agreed that the time for the approval of the separators should be extended to May 12th. There is a conflict of testimony as to whether it was also agreed that Savage was to go to the creamery at Delta on May 12th, to learn whether the appellants approved the separators. He did not go to the creamery on the 12th, but he subsequently wrote a letter dated "Philadelphia, May 15, 1899," to Mr Hitchcock, the appellants' agent at the creamery, explaining that, owing to illness, he had been unable to get there on the 12th, "as per agreement," and inclosing a statement of an account charging the appellants with the contract price of the two separators. On May 20, 1899, the appellants wrote to the appellee that the separators were unsatisfactory, and asked that they be removed from the creamery. To this letter the appellee promptly replied, refusing to take back the separators upon the ground that the notice of disapproval came too late, and insisting that the conduct of the appellants amounted to an approval of the sale. On May 30th the appellants shipped the separators by railroad to the address of the appellee, and notified it by letter of the shipment. The appellee replied by letter that it would not receive the machines except possibly receive and care for them for account of the appellants, and that it would be guided by the advice of its counsel, in whose hands it would place its account against the appellants. The evidence introduced at the trial of the case did not account for the separators after they had been shipped by the appellants, on May 30th, to the address of the appellee, but affidavits and exhibits filed in support of a motion which was made to strike out the judgment disclosed the fact that they had been seized on June 19, 1899, under an attachment sued out in the state of New York by the appellee against the appellants for the debt sued for in the present case, and had been condemned and sold under an execution in the attachment case. At the trial of the case in the superior court three exceptions were taken by the appellants; one to the court's action on the prayers, and two to the admission of certain evidence. A fourth exception was taken by them to the refusal of the court to grant their motion to strike out the judgment. We will first consider the exceptions to the court's action upon the prayers.
The appellee, as plaintiff below, offered six prayers, of which the court granted the third, fourth, and sixth in the form in which they were offered, and granted the first and second with a modification. The appellants, as defendants, offered eight prayers, of which the court granted the first two, and rejected the others. The plaintiff's first prayer, in substance, was that, if the jury found that one of the terms of the sale of the separators was that the defendants should be allowed a stated time for the approval of them, and they retained the separators until after the expiration of that period, and did not within a reasonable time thereafter notify the plaintiff of their disapproval, then the jury should infer an approval and acceptance of the separators by the defendants, and render a verdict for the plaintiff. The plaintiff's second prayer instructed the jury that, while it was necessary for them to find an approval of the separators before they could find a verdict for the plaintiff, such approval need not have been expressly given but was to be inferred from the retention of the separators by the defendants beyond the contract time for approval, without giving notice for their disapproval to the plaintiff within a reasonable...
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