Cole v. Hines

• Decision Date: 20 June 1895
• Citation: 32 A. 196,81 Md. 476
• Parties: COLE v. HINES.
• Court: Maryland Court of Appeals

32 A. 196

81 Md. 476

COLE v. HINES.

Court of Appeals of Maryland

June 20, 1895

Appeal from Baltimore court of common pleas.

Action by Noah Lee Cole against Julius Hines for damages for retaking goods sold by defendant to plaintiff, after a waiver of default in payment. A demurrer was sustained to the declaration, and plaintiff appeals. Reversed.

Argued before ROBERTS, BRYAN, McSHERRY, FOWLER, PAGE, BOYD, and BRISCOE, JJ.

H. H Bowen, for appellant.

W. B Trundle, for appellee.

BRISCOE J.

Noah Lee Cole brought suit against Julius Hines in the court of common pleas of Baltimore city, and the declaration is in these words: That on the 4th day of April, 1893, the said Noah Lee Cole obtained from said Julius Hines merchandise consisting of "one suit of furniture, 18 1/2 yards of carpet, and one mattress," upon the terms and conditions set forth in the paper hereto attached, for which he, the said Noah Lee Cole, agreed to pay $50.10, to be paid in monthly installments of $4 each, in the manner and at the times stated therein. That said Noah Lee Cole accordingly paid, on account of said $50.10, the sum of $20, so that on the 15th day of October, 1893, being in arrear in his payments $8, he received from said Julius Hines a promise to wait two weeks for the payment of said sum of $8, namely until the 29th October, 1893, and an extension of the time specified in the contract for payment until said 29th October, 1893. That two days before the expiration of said two weeks, namely, on the 27th day of October, 1893, the said Julius Hines, by his agents, and knowing the said Noah Lee Cole to be away from home, and therefore unable to prevent the wrongful seizure, and make payment, forcibly entered the premises of said Noah Lee Cole, and removed the goods and merchandise purchased as aforesaid, to the great inconvenience, humiliation and injury of the said Noah Lee Cole and his family.

To this declaration the following contract was attached and was made a part thereof: "This indenture witnesseth that I have this day rented from Julius Hines the articles hereinafter mentioned, upon the following conditions: That I shall pay to him the sum of $1 cash, the receipt whereof is hereby acknowledged, and $4 in monthly installments, each and every 12th from day of date hereof, until the sum of $50.10 shall be fully paid. The said Julius Hines will, upon the final payment, sell to me the said property, and execute and deliver to me a receipted bill of sale thereof. And I also agree to retain them, as his goods, at 2017 Oak street, in the city of Baltimore and state of Maryland, for my own use, but nevertheless in trust for and as the property of Julius Hines, who neither parts with, nor do I acquire, any title thereto until the said sums are fully paid. I further agree not to remove the same from said premises, or sell or attempt to sell without the consent of Julius Hines; and in case of any default in any payments, or the falsity of my accompanying statements in any one particular, or in other violation of this contract, this agreement shall, at his option, be deemed annulled; and he is hereby authorized to enter my premises and remove said property; and be it distinctly understood that I have rented these goods from Julius Hines upon the truthfulness of these representations. Julius Hines reserves the right to refuse to send the articles mentioned in this contract, if not satisfactory to him. He also reserves the right to give more time than that agreed upon, if it suits his views, without vitiating this contracting by such extension of time. Signature: Noah Lee Cole. Date: April 4, '93. Occupation: Brakeman. By whom employed: N. C. R. R. Salesman: A. W. Hines. Notice of removal must be sent to my store. No articles exchanged, and no money refunded if the articles are taken back."

The defendant demurred to the declaration, and, judgment upon the demurrer being for the defendant, the plaintiff has appealed. The appellee contends that his promise to grant an extension of time for the payment of the two installments being a voluntary promise, without consideration, was not binding, but that, notwithstanding such promise, he was at liberty to annul the contract, retake the goods, and forfeit the purchase money already paid by the appellant. It will be observed, however, that this is not like the cases cited by the appellee, where there is a debt absolutely due and payable, and the creditor gratuitously promises to grant an extension of time for the payment. By the express terms of this contract, the vendor, in the event of a default by the buyer, had a right either to declare a forfeiture and retake the goods or to waive the default and continue the contract in force. The declaration alleges conduct by the seller which, as will be subsequently seen, did amount to a waiver of the default, and the question is whether the defendant was bound by that waiver, or whether he could subsequently, and for the same defaults that were so waived, enforce the forfeiture. It is therefore not the case of a mere promise to give indulgence to a debtor or to waive a future default, but one involving the consideration of the effect of an actual waiver.

In all contracts where time is of the essence, a breach of the contract in that respect by one of the parties may be waived by the other party's subsequently treating the contract as still in force. Pinckney v. Dambmann, 72 Md. 178 19 A. 450; Webb v. Hughes, L. R. 10 Eq. 281; Black v. Woodrow, 39 Md. 194. In these cases of conditional sales, the acceptance by the seller of an installment of the purchase money, after default, is a recognition of the contract as still subsisting, and a waiver of the forfeiture. Hutchings v. Munger, 41 N.Y. 158; ...