Dimmick v. Hendley
| Decision Date | 02 February 1912 |
| Parties | DIMMICK et al. v. HENDLEY. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott Judge.
Action by Charles W. Hendley, trading as C. W. Hendley & Company against J. K. Dimmick and M. R. Gano, trading as J. K Dimmick & Company, and W. Howard Ramsay and another as executors of H. W. Coleman, deceased. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
Edwin T. Dickerson and S. S. Field, for appellants. Frank Gosnell, for appellee.
The appellees on this record recovered a judgment in the Superior Court of Baltimore City for $1,395.46 against the appellants. This is the defendants' appeal from that judgment.
It appears from the record that the parties to the suit entered into a written contract by which the plaintiff agreed to sell and the defendants to buy from the plaintiff 5,000 tons of 48 hour "Orr" West Virginia furnace coke to be shipped by the plaintiff as directed by the defendants. Twenty-five hundred tons were to be shipped in the month of November, 1909, and 2,500 tons in the month of December, 1909; each month's shipment to be paid for in cash on the 20th day of November and December, respectively. The plaintiff delivered to the defendants under the contract 2,019.20 tons of coke in November, 1909, and, upon the allegation that the defendants repudiated their contract and refused to receive or direct the shipment of the remaining coke, this suit was brought for the recovery of damages for the breach of the contract. The coke mentioned in the contract meant coke burned 48 hours in the ovens of the "Orr" Coal & Coke Company, a West Virginia corporation, for use in iron furnaces, and the price to be paid by the defendants to the plaintiff was $2.20 per ton of 2,000 pounds f. o. b. ovens. By a decree of the Circuit Court of the United States for the Northern District of West Virginia, passed in February, 1909, the Orr Coal & Coke Company, the manufacturer of the coke specified in the contract, was placed in the hands of William C. Brown and William G. Conley as receivers, who were authorized by the decree appointing them to take charge of the property and assets of the company, and to operate and manage its business through their superintendents, managers, and agents.
There is evidence in the record tending to show that the plaintiffs had a contract with the receivers by which they were to deliver to the plaintiff the coke mentioned in the contract at the rate of $1.65 per ton. In view of some of the questions presented by the record, it must be kept in mind that the plaintiff was not the owner, manufacturer, or producer of the coke contracted to be sold, nor was it in their possession or control; but that under the terms of the contract it was to be produced by the Orr Coal & Coke Company from which the plaintiff was required to procure it. The defendants accepted 2,019.20 tons on account of the November delivery, and the plaintiff sold and delivered for account of the defendants 480.81 tons to the Wharton Furnace Company at $2.15 per ton, and charged them with five cents per ton, being the difference between the contract price and the sale price; the total difference being $24.05.
By the defendants' third prayer, the court instructed the jury that since it appeared by the plaintiff's evidence that the defendants accepted and paid for all the coke they contracted to take in November, 1909, less the amount sold to the Wharton Furnace Company, the defendants were not entitled to recover more than $24.05, with or without interest in the discretion of the jury because of the defendants' failure to take the whole 2,500 tons in November, 1909, as contracted for. This instruction, which was properly granted, removed from the case all question as to the November delivery, and left for determination the sole question whether the defendants were liable under the contract for their failure to accept the 2,500 tons which were to be delivered in December, 1909. In an action for damages for the breach of an executory contract of this character, it is essential for the plaintiff to prove that he was able and willing to deliver the goods according to the terms of the contract, and that performance on his part was prevented by some act or default of the defendant. This principle is elementary, and is accepted as the law of the case by both parties to the controversy.
The record presents for our consideration: First, the rulings of the court on the admission or rejection of evidence. Second, the legal sufficiency of the evidence to take the case to the jury. Third, the proper rule as to the measure of damages to be applied under the facts. The second and third questions arise under the rulings upon the prayers and on the overruling of the defendants' special exception to the granting of the plaintiff's first prayer. Fourth, the propriety of an oral opinion delivered in the presence of the jury by the presiding judge in passing upon the prayers. Fifth, the sufficiency of the declaration which was attacked by the plaintiff's prayer which referred to the pleadings.
There are eight bills of exceptions to the rulings on evidence. We find no reversible error in the first, second, third, fourth, fifth, and eighth exceptions.
The plaintiff offered in evidence three letters, one dated January 7, 1910, from the defendants to William G. Brown, who had been one of the receivers of the Orr Coal & Coke Company; Mr. Brown's reply to that letter addressed to the defendants, and dated January 20, 1910; and a letter to the defendants dated January 24, 1910, from J. M. Orr to whom Mr. Brown had referred the defendants for the information sought in their letter to him. In the letter of January 7, 1910, the defendants admit the contract with the plaintiff to take from them 5,000 tons of coke at $2.20 a ton to be delivered in equal tonnage in November and December, and they admit that they had canceled their contract with the plaintiff. What they wanted to know was whether there was a clause in the contract between the receivers of the Orr Coal & Coke Company and C. W. Hendley Company, the plaintiff, under which, when the plant was sold and the receivership discontinued, Hendley Company's contract was canceled. They asked Mr. Brown for information upon this point. Mr. Brown's reply referred the defendants to J. M. Orr, who was the superintendent of the plant during the receivership. Orr's letter to the defendants stated that there was nothing in the contract about cancellation. The admissions of the defendants we have referred to clearly made the letter of January 7, 1910, admissible, and it does not appear that the defendants could have been injured by Orr's letter, as it is not claimed by them that any clause of cancellation was contained in the contract referred to.
Before passing on the remaining exceptions to the rulings on testimony, it is proper to refer to certain facts disclosed by the record. The greater number of these exceptions arose out of an effort on the part of the plaintiff to show their ability to perform the contract. On November 26, 1909, the receivers of the Orr Coal & Coke Company sold the property to William A. Stone, and this sale was ratified by the court, and Stone took possession on the 1st of December, 1909. At that date all the coke at the plant had been disposed of by the receivers. On the 29th of November, 1909, there was 1,000 tons of coke loaded upon cars at the plant, which the receivers were anxious to dispose of. This coke was offered to the defendants on November 29th; but they declined to receive it, claiming properly that they were under no obligations at that date to take the coke on account of the December delivery. This coke was sold to another party. J. M. Orr, who was the manager of the plant during the receivership, occupied that position under Mr. Stone until January 1, 1910, and it was upon his testimony and that of Stone that the plaintiff principally relied to take the case to the jury.
The plaintiff was under no obligation under their contract with the defendants to buy the coke from the receivers. It was no concern of the defendants from whom the plaintiff bought the coke, so long as they were able to deliver the character of coke called for by the contract. If Stone was willing to let them have the coke, the defendants had no reason to complain. If they could have gotten the coke from Stone at an advanced price, it was their right to do so, although their gain under the contract would have been to that extent reduced. It was therefore proper for the plaintiff to show that they could have gotten coke from Stone and at what price, and for this purpose it was permissible for them to prove that, after Stone had bought the property, there was an arrangement by which he was to fill the contract made by the receivers, and there was therefore no error in admitting that character of evidence, which constitutes the second exception. The third exception is not pressed by the appellants. The question was as to the price to be paid Hendley & Co. by the defendants. The question was not answered, although no valid objection to such evidence could be made. For the reasons stated in passing on the second exception, there was no error in the ruling on the fourth, as that exception presents substantially the same question. We would not reverse for the admission of the evidence embraced in the fith exception although that testimony ought not to have been admitted; but, standing alone, we would not pronounce it reversible error. There was, however, serious error in admitting the letters embraced in the sixth and seventh exceptions. These letters were written by J. M. Orr, a stranger to the defendants,...
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