Cumberland Glass Mfg. Co. v. de Witt

• Decision Date: 10 April 1913
• Parties: CUMBERLAND GLASS MFG. CO. v. DE WITT.
• Court: Maryland Court of Appeals

87 A. 927

120 Md. 381

CUMBERLAND GLASS MFG. CO.

v. DE WITT.

Court of Appeals of Maryland.

April 10, 1913.

Appeal from Superior Court of Baltimore City; James M. Ambler, Judge.

Action by Charles De Witt against the Cumberland Glass Manufacturing Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

The prayers for instructions granted by the court to the several parties were as follows:

Plaintiff's first prayer: "The plaintiff prays the court to instruct the jury that if they find from the evidence, that in the month of February, 1906, the plaintiff had entered into contracts with the Mallard Distilling Company to supply it with 2,000 gross of glass flasks at $2.40 per gross, if they so find, and further find that the plaintiff was at all times able and ready to comply with said contracts, and furnish said flasks to the Mallard Distilling Company in accordance with said contracts, if they so find, and further find, before the time of delivery of said flasks by the plaintiff to the Mallard Distilling Company under said contracts, that the defendants or its agents obtained information of said contracts, if they so find, and the defendant with full knowledge of said contracts, dispatched one of its salesmen to the Mallard Distilling Company with instructions to said salesman to get the order of the Mallard Distilling Company for said flasks, if they so find, and did procure and induce the Mallard Distilling Company to break said contracts it had with the plaintiff for the said 2,000 gross of flasks, for the purpose of benefiting itself or injuring the plaintiff, if they so find; then the verdict of the jury should be for the plaintiff; provided the jury further find that the plaintiff was kept in ignorance of the cause of action for which this suit is brought by the fraud of the defendant, if they so find, which fraud was not discovered, and could not have been discovered, by the plaintiff by usual and ordinary diligence, until the year 1909."

Plaintiff's second prayer: "The plaintiff prays the court to instruct the jury, if they find for the plaintiff, that the damages the plaintiff is entitled to recover is the difference between the cost to the plaintiff of the flasks embraced in the contracts, which the jury may find the contracts in question required the plaintiff to furnish the Mallard Distilling Company at the time of delivery of same, and the price of said flasks embraced in the said contracts, which was stipulated in said contracts to be paid the plaintiff for the 2,000 gross of said flasks by the Mallard Distilling Company."

Defendant's fifth prayer: "The jury are instructed that the burden of proof is upon the plaintiff to establish, by a preponderance of proof satisfactory to them, the truth of the following allegations, alleged in the plaintiff's amended replication to the defendant's second plea, to wit: 'The defendant did fraudulently keep the plaintiff in ignorance of said cause of action by fraudulently, deceitfully, and dishonestly denying that it had in any way been guilty of any of the acts alleged in the amended narr.' 'and the said facts did not come to the knowledge of the plaintiff' until less than three years before the institution of this suit, though 'he had used ordinary diligence to discover the same,' and if the testimony in this case does not satisfy the jury as to the truth of the said allegations, the verdict must he for the defendant."

Defendant's sixth prayer: "The jury are instructed that under the pleadings, if they find that the plaintiff failed to bring this suit within three years from the time his right of action accrued, and shall further find that his failure to bring said suit was not due to any dishonest or fraudulent concealment by the defendant of the existence of such right of action, then their verdict must be for the defendant."

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Henry H. Dinneen and Arthur L. Jackson, both of Baltimore, for appellant.

Lewis W. Lake and Thomas G. Hayes, both of Baltimore, for appellee.

BURKE, J. The amended declaration upon which this case was tried alleged that since the year 1886 the plaintiff had been a dealer in imported and domestic bottles, demijohns, etc.; that the defendant, the Cumberland Glass Manufacturing Company, a foreign corporation, was engaged in the manufacture of glass bottles, window glass, etc., and conducted its factory at Bridgton in the state of New Jersey; that it complied with the requirements of the law of this state, which permit foreign corporations to transact business here, and that it was in fact doing business here. It further alleged that on February 8, 1906, the plaintiff entered into a written contract with the Mallard Distilling Company of New York to supply them with 1,000 gross of half-pint lettered gin flasks, eight-ounce capacity, at the price of $2.40 per gross, and that on or about the same date did verbally enter into an additional contract with said company for another 1,000 gross of bottles at $2.40 per gross, which bottles were to be made identical in every respect with those specified in the written contract. It then alleged "that the Cumberland Glass Manufacturing Company did, with knowledge of the existing contract, on or about the 15th day of February, 1906, by and through the medium of their agents, visit the said Mallard Distilling Company, and maliciously and without just cause, with the intent to injure the plaintiff and to derive a benefit for itself, cause, induce, and procure the said Mallard Distilling Company to rescind, break, and violate their contracts" with the plaintiff. It further alleged that at the time the Mallard Distilling Company broke its contracts, the plaintiff charged the defendant with having interfered with and caused the Mallard Company to break the contracts; that the defendant denied that it had in any way interfered with the contracts, or had procured, or caused the same to be broken; that the plaintiff was unable to procure sufficient proof against the defendant of its violation of duty, and that the proof of the facts was not known or exhibited to him until the latter part of the year 1909, but was fraudulently concealed and withheld by the defendant. The defendant interposed three pleas: First, that it did not commit the wrong alleged; secondly, limitations; thirdly, res adjudicata, based upon certain proceedings had in the United States District Court for Maryland, and particularly set out in the pleas. The plaintiff joined issue upon the first plea, and demurred to the second and third. The demurrer was overruled as to the second plea, limitations, and sustained as to the third plea, res adjudicata. The plaintiff replied to the plea of limitations, and, upon demurrer, the replication was held bad. He then filed an amended replication in these words: "That the said cause of action did accrue within three years prior to the filing of the said suit, inasmuch as the said Cumberland Glass Manufacturing Company, the defendant in the said cause, did fraudulently keep the plaintiff in ignorance of the said cause of action by fraudulently, deceitfully, and dishonestly denying that it had in any way been guilty of any of the acts alleged in the said cause of action as set out in the amended declaration of the plaintiff, although the plaintiff did charge the defendant with the same upon the 1st of March in the year 1906; and the said facts did not come to the knowledge of the said plaintiff until the latter part of the year 1909, although he had used ordinary diligence to discover the same." The defendant demurred to this replication, and, its demurrer being overruled, filed a rejoinder, upon which issue was joined. The trial resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.

The first question presented for consideration is the legal sufficiency of the declaration. This question is raised by the plaintiff's demurrer to the second and third pleas to the amended narr., and by the defendant's second prayer, which refers to the pleadings, presented at the close of the case. The declaration is said to be bad for three reasons: First, because it contains no allegation that the plaintiff was able and willing to carry out his contracts with the Mallard Distilling Company; secondly, for duplicity, since it contains two complete, separate, and independent causes of action in one count; thirdly, because one of the contracts was unenforceable under the statute of frauds, and the declaration does not allege that but for the defendant's interference the Mallard Company would have carried out this contract, and would not have relied upon the defense of the statute. The first and second grounds of objection rest upon the doctrine declared in Dimmick v. Hendley, 117 Md. 458, 84 Atl. 171; Milske v. Steiner Mantel Company, 103 Md. 235, 63 Atl. 471, 5 L. R. A. (N. S.) 1105, 15 Am. St. Rep. 354, and other cases. But those cases have no application to cases of this kind. The cause of action set out in the declaration is the wrongful interference by the defendant with the contract relations between the plaintiff and the Mallard Distilling Company. The cause of action is the tortious act of the defendant in procuring or causing the breach of the plaintiff's contracts with the Mallard Company. The suit is not upon the contracts, nor does it charge the defendant with several distinct torts. It charges one single tort, resulting in damages to the plaintiff. It is well settled that a declaration, whether it is based upon a contract or upon tort, cannot combine in one count two distinct causes of action. But we do not regard the declaration in this case as open to this objection. Mr. Poe, in his first volume on Pleading and Practice, § 734, says: "Much discussion will be found in the books in regard to what will and what will not make a pleading double. The best...