Cheney v. Eastern Transp. Line

• Decision Date: 08 March 1883
• Citation: 59 Md. 557
• Parties: ALFRED C. CHENEY and others v. THE EASTERN TRANSPORTATION LINE.
• Court: Maryland Court of Appeals

59 Md. 557

ALFRED C. CHENEY and others v. THE EASTERN TRANSPORTATION LINE.

Court of Appeals of Maryland

March 8, 1883

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

First and Second Exceptions omitted as they were not passed upon by the Court.

Third Exception.--The evidence on both sides being closed, the plaintiff offered the following prayer:

If the jury find from the evidence that the defendant, Perretz, was authorized by the owners to sell the Falcon, and if they find the letters offered in evidence in the cause, then the same letters constitute a contract in writing, for the sale of the hull of the steamer Falcon to the plaintiff, whereby the property passed, and the plaintiff is entitled to recover unless the jury find that such contract was subsequently rescinded by the joint agreement of the plaintiff and the owners of the vessel.

The defendants prayed the Court to instruct the jury as follows:

1. The plaintiff has not proven such title to the property replevied, as to entitle it to a verdict, and the verdict must therefore be for the defendants.

2. If the jury believe from the evidence that Perretz did not accept the proposition of Robert for the purchase of the hull of the Falcon, except on conditions, and that said conditions were not agreed to and accepted by Robert, then the plaintiff is not entitled to recover.

3. If the jury believe from the evidence, that in the early part of January, 1881, the witness, Frederick Robert, acting for plaintiff, in conversation with the defendant, Cheney advised the defendant, Alfred C. Cheney, to come on from New York to Baltimore, and buy the entire wreck of the steamer Falcon, including hull as well as the machinery, and said that if he should do so, the plaintiff would buy the hull from him, and would pay him therefor $500, delivered in New York, and that he, Robert, did not then intimate to the witness, Cheney, that the plaintiff either had, or claimed to have bought the said hull, and shall further believe that Cheney, in consequence of that advice, came on to Baltimore and made with the defendants, Winternitz & Sons, the contract given in evidence, dated February 11th, 1881, the plaintiff is not entitled to recover in this action.

4. That though the jury may believe from the evidence, that the plaintiff bought the hull of the steamer in dispute, in the month of December, 1880, yet if they also believe from the evidence, that the defendant, Cheney, bought the entire steamer in the month of February, 1881, as shown by the contract of February 11th, 1881, offered in evidence, in ignorance of the fact, that the plaintiff had previously bought the hull, their verdict must be for the defendants.

The Court (GILMOR, J.,) granted the plaintiff's prayer, and refused those of the defendants. The defendants excepted, and took this appeal, the verdict and judgment being for the plaintiff.

The cause was argued before MILLER, ALVEY, ROBINSON, IRVING, and RITCHIE, J.

John H. Thomas, for the appellants.

Julian I. Alexander, for the appellee.

IRVING J., delivered the opinion of the Court.

This is an action of replevin brought by the appellee against the appellants to recover the hull and masts of the steamship Falcon. The undisputed facts are as follows: The vessel was lying at Baltimore, and Frederick Robert, President of the Eastern Transportation Line, went to Baltimore to examine the boat; there he met Perretz, the agent of the owners, Messrs. Winternitz & Sons, with whom he went to examine the hull, which was a wreck. Perretz named a price which Robert declined; and, on being asked to make an offer, Robert offered $400.00. Perretz then took him to the owners, and he there said to the owners: "Gentlemen, I will give you $400.00 for that hull delivered in Baltimore, or $500.00, delivered in New York; I am in no particular hurry for the hull and will give you until the 15th of February to deliver it." They then talked of the machinery and telephoned somebody to know what it would cost to take it out and store it, when, as it was nearing train time, Robert said he was going, "and if he found a letter on his desk next morning accepting his offer of $400--he would leave the offer open till that time--he would take it." During the examination of the hull, Robert told Perretz, if he purchased the hull, he should cut off all above the upper deck. On their way to the train, (to which Perretz accompanied Robert), Perretz asked Robert if he cut the vessel down "will you let me have the wood off her;" and Robert said, "yes, certainly. I don't want it." Perretz then asked Robert if he docked the hull could he, Perretz, take out the shaft and wheel, Robert replied, that he would have the vessel on the dock probably 48 hours, and if Perretz had it taken out in that time there should be no charge. This was on the 14th of December, 1880; and on the next day Robert received the following letter, dated Baltimore, Dec. 14th, 1880. "Frederick Robert, Esq., President Eastern Transportation Line, Jersey city, Dear Sir:--I have concluded of accepting your offer on the hull of Falcon, at $500, New York, or $400 here, to be delivered, until the 15th of February, the latest; that all the off fall from said hull, above the barch line to go to Charles Winternitz & Sons, and that if delivered here, while forty-eight hours on the dock, you will allow me to take such machinery out of her hull, that I can't while lying in her present place. If you agree to these terms, please reply, the money to be paid as soon as the transfer is effected. To your worthy name, hoping these lines will find you in best of health, I am very respectfully, yours,

T. B. PERRETZ.

P. S.--Should you learn of any one that would purchase boiler and engine, refer them to me. Answer me, please, at your earliest convenience."

To this letter Robert replied as follows: "New York, Dec. 15th, 1880. My Dear Sir:--Your esteemed favor of the 14th inst. is at hand accepting my offer for the hull of the steamer Falcon. I understand the barch line mentioned in your letter to be that of the main deck, and that the masts go with the hull. I will request Mr. Bolander to draw up the usual contract for us, it is part of his business, and he can make no extra charge for the same. The terms I understand to be cash on delivery, either in New York, or Baltimore. With regards to Messrs. Winternitz & Sons, I am yours, truly."

FRED. ROBERT, Pres't.

Mr. T. B. Perretz, Baltimore, Md.

In reply to this was another letter from Perretz as follows: "Baltimore, Dec. 16, 1880. Frederick Robert, Esq., President Eastern Transportation Line, New York. Dear Sir:--Yours of the 15th inst. to hand, contents carefully noted, hoping that I have not asked anything that is of any value to your company. I understand from you that all the broken part should be cut off; that is what I ask for fire wood for some of our laborers; and if any small amount of all (old) iron you will certainly not take it with you to New York, there is but little of it. I have mentioned these facts to Mr. Bolander. The masts belong to the barch, of course. With best regards from my folks, as well as from me, I am yours, very respec'y."

T. B. PERRETZ.

To this Mr. Robert replies, "New York, Dec. 16, 1880. Dear Sir:--Yours of the 15th is at hand and contents noted. We are perfectly willing you should cut off and retain the wood and iron on hull of Falcon, above the main deck, only stipulating if you take any that you take all off. If in doing this the hold of the masts to the hull is too much wrecked to be safe, I will receive them laid on the deck. Yours, truly."

FREDERICK ROBERT, Pres't.

P. S.--I think you had perhaps better leave the stem and ________ standing for about four feet above the deck. F. R.

On the 18th of Dec., 1880, Perretz writes, "Dear Sir:--Yours of the 16th inst. to hand, contents I can hardly understand; do you mean for me to have that work done for you? if so limit me to a price, and to whom you would like me to give the job? tell me exact how much to cut off, and how high to leave at the stem, all the off fall I will take, such above the barch line. Awaiting an early reply with instruction, I remain, very respectfully, yours,

T. B. PERRETZ."

On the 20th Mr. Coffin, Mr. Robert's secretary, writes that his letter had been received, and Mr. Robert would write the next day "about the work, and in the meantime you are to do nothing."

On the 21st Dec., 1880, Mr. Robert writes, "My Dear Sir:--Yours of the 18th instant is at hand, and you seem to be under some misapprehension in regard to the Falcon's hull. I consider that I have bought the hull including the masts delivered at your option, either in Baltimore or New York; but not the engines, boiler, anchors and chains, &c. I do not desire that you should do anything to the hull at all, but as I do not propose to use that part of the hull, above the lower deck, I am willing, if you desire to do so at your own expense, that you should cut off that part of the vessel, retaining the material for your own use. I want the stem and apron, and about fifteen feet in length of the bow above the lower deck, with the upper deck attached, left on the hull. You speak in your letter of the "barch line," this I do not understand. The alterations and removals to the hull, I will attend to myself after the hull is delivered. If you have any trouble in understanding this letter, read it to some master shipwright, and he will be able to explain it I think, so there will be no trouble."

The next letter Perretz writes, he only says, "would you object for me of having any caulking done on the lower part of the hull, if I should find it necessary in order to bring...