A.D. Birely & Sons v. Dodson

• Decision Date: 07 January 1908
• Citation: 68 A. 488,107 Md. 229
• Parties: A. D. BIRELY & SONS v. DODSON.
• Court: Maryland Court of Appeals

68 A. 488

107 Md. 229

A. D. BIRELY & SONS v. DODSON.

Court of Appeals of Maryland

January 7, 1908

Appeal from Circuit Court, Frederick County; John C. Motten, Judge.

Action by William M. Dodson, trading as Southern Fertilizing Company of York, Pa., against A. D. Birely & Sons. From a judgment for plaintiff, defendants appeal. Reversed, and new trial granted.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and WORTHINGTON, JJ.

Frank L. Stoner and Hammond Urner, for appellants.

Emory L. Coblentz and Charles C. Waters, for appellee.

PEARCE J.

This is an action of assumpsit brought by the appellee to recover the price of goods sold and delivered to the appellants. The plaintiff is a wholesale dealer in fertilizers, doing business in York, Pa., and the defendants are general merchants at Ladiesburg, Frederick county, Md., and for several years before this suit was brought had been purchasing fertilizers from the plaintiff for their retail trade. The account sued on was as follows:

March 10, 1905, to September 13, 1905. To amount of account for

fertilizers bought ................................................

$7,253 71

December 22, 1905. By cash on account ................................

6,343 50

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$ 910 21

Interest from December 1, 1905, to September 22, 1906 ...................

68 62

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Balance due .......................................................

$978 83

The narr. contained only the common counts, and the defendants by their pleas admitted they owed part of the claim, namely $265.84, which they then paid into court, and denied the rest of the claim. This $265.84 represented the purchase price of a car load of fertilizers inadvertently overlooked when the payment of $6,343.50 was made, though the amount was tendered to the plaintiffs before this suit was brought, and was refused by them.

The plaintiff was the only witness in his own behalf. During his examination he was shown an itemized account of the whole transaction involved in this suit, the correctness of which he testified to, and the defendant's counsel then and there admitted that each shipment on the bill was correct, and that each shipment had been duly delivered to them, but claimed they were entitled to a rebate of 50 cents per ton and a discount of 5 per cent. upon the amount of purchase, representing the difference between the plaintiff's claim and the amount admitted by the defendants to be due. The plaintiff denied that the defendants were entitled either to any rebate or discount, and stood upon a written contract, signed by both the parties, dated May 24, 1905, which was put in evidence. The fertilizers for the spring trade were sold before the execution of this contract; but it appears that the only dispute is as to the fall goods sold under this contract, the allowance claimed by the defendants being as follows:

To rebate of 50 cents per ton on 566 1/2 tons ..

$283 25

To 5 per cent. discount on $7,218.61 ............

360 93

To subscription of W. M. Dodson to church ........

10 00

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$654 18

The contract in evidence provided that the plaintiff should furnish the defendants with their various brands of fertilizers at the prices and on the terms therein stated. The terms are as follows: "Terms: 5 per cent. discount on receipt of cash in December 1st from date of invoice. On goods ordered in 100-pound bags 50 cents per ton will be added to the above prices. These prices are for car loads (15 tons). Above discounts are to dealers only on fertilizers ordered during the fail season of 1905, and settled according to contract. Or, if time is wanted, the Southern Fertilizing Company will send note payable January 1st from date of invoice, and the dealer agrees to sign and return the same to the Southern Fertilizer Company." The contract also contained the following provision: "The party of the second part agrees to order from the first party, receive and pay for, on the above terms, at least 1,000 tons of the various brands of fertilizers above noted during the fall season of 1905." It is not necessary to note any other provisions of this contract. It was signed by the parties at the City Hotel in Frederick, no one being present but the plaintiff and A. D. Birely, senior member of the defendant firm.

The plaintiff testified that there was no other agreement or understanding between the parties than the written contract above. He acknowledged his promise to pay $10 to the church, and his willingness to allow it as a credit, but denied that the defendants were entitled to any other credit, and said he did not allow the discount because defendants did not settle according to the contract. A. D. Birely testified that they only ordered 640 tons, as they did not need more for their trade, and that the agreement under which they were purchased was reached at their office in Ladiesburg, but the paper was signed later at the City Hotel in Frederick. These fertilizers were to be procured by the plaintiff from the Lazaretto Guano Company of Baltimore, which from the testimony of the plaintiff is connected with a fertilizer trust.

The defense which the defendants proposed to make, but which they were not allowed by the court to present, was substantially this: That neither of the parties intended the written contract to be the real contract between them, and that it did not in fact constitute the true contract, that previous to the preparation of the contract in writing they had agreed upon the price and terms of payment for any quantity of fertilizer they might need for the season trade, but that, when they met in Frederick, the plaintiff represented that it was necessary there should be a written contract showing higher prices than those actually agreed on, as he did not wish the trust from which he purchased the goods to know that he was selling below certain rates fixed by it. He also said he wished the written contract should require the purchase of 1,000 tons in order to swell his apparent sales, but that the defendants were not to be bound to order more than they needed, and that the actual prices to be paid should be 50 cents per ton less than those stated in the paper, except for South Carolina rock, with a discount of 5 per cent. on the gross amount of purchases. In attempting to present this defense, 23 exceptions were taken, all to rulings upon the admission or striking out of testimony, and the verdict and judgment being for the plaintiff for the whole amount of his claim, this appeal has been brought.

The principal and controlling question in the case is whether parol evidence of the facts above stated was admissible to show that the written instrument purporting to be the contract was not intended to be, and was not in fact, the real effective contract. That such testimony was admissible for the purpose for which it was offered in this case we think has been definitely determined in the recent case of Southern Advertising Company v. Metropole Shoe Co., 91 Md. 61, 46 A. 513. The underlying ...