Eastern Shore Brokerage & Commission Co. v. Harrison

• Decision Date: 05 April 1922
• Docket Number: 10.
• Citation: 118 A. 192,141 Md. 91
• Parties: EASTERN SHORE BROKERAGE & COMMISSION CO. v. HARRISON et al.
• Court: Maryland Court of Appeals

118 A. 192

141 Md. 91

EASTERN SHORE BROKERAGE & COMMISSION CO. v. HARRISON et al.

No. 10.

Court of Appeals of Maryland

April 5, 1922

Appeal from Circuit Court, Queen Anne's County; Lewin W. Wickes Judge.

"To be officially reported."

Action by Orlando Harrison and another, partners as Harrison's Nurseries, J. G. Harrison & Sons, Proprietors, against the Eastern Shore Brokerage & Commission Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE ADKINS, and OFFUTT, JJ.

Arthur W. Machen, Jr., and Raymond S. Williams, both of Baltimore (Fred R. Owens, of Denton, J. Frank Harper and J. H. C. Legg both of Centerville, and Hershey, Machen, Donaldson & Williams, of Baltimore, on the brief), for appellant.

John S. Whaley and John W. Staton, both of Snow Hill (Thomas J. Keating, of Centerville, on the brief), for appellees.

THOMAS J.

This appeal is from a judgment of the circuit court for Queen Anne's county, and a motion has been filed by the appellees to dismiss the appeal, on the ground that the record was not transmitted to this court within three months from the date of the appeal.

The docket entries show that the judgment was entered on the 16th of May, 1921, and that the order for appeal was filed on June 29, 1921; that by several orders of the court below, regularly passed, the time for "filing and signing the exceptions" was extended to the 30th of September, 1921, and that the bill of exceptions was filed on September 28, 1921. The record reached this court on October 15, 1921, and Fred R. Owens, Esq., one of the counsel for the appellant, has filed an affidavit stating that the bill of exceptions was presented to the trial judge at Chestertown about the 21st of September; that the judge signed the exceptions on the 24th of September, and mailed the bill of exceptions to him at Denton, and that he immediately remailed it to the clerk of the circuit court at Centerville on the 27th of September, 1921; that he had previously made satisfactory arrangements with the clerk for the payment of the cost of the record, and that it was not possible for the clerk, after receiving the bill of exceptions, to prepare the record and transmit it to this court within the three months from the date of the appeal.

As the bills of exception were prepared by the appellant, signed by the trial judge, and filed within the time allowed by the order of the court below, and the appellant had arranged to pay the cost of preparing the record, it cannot be said that the delay in transmitting it to this court was due to the appellant or his counsel, and the motion to dismiss the appeal must therefore be overruled. Cochrane v. Little, 71 Md. 323, 18 A. 698; Duvall v. Md. Elec. Rys. Co., 114 Md. 298, 79 A. 192; Snowden v. State, 133 Md. 624, 106 A. 5; Hall v. Albertie (Md.) 118 A. 189, No. 41 January Term, 1922. The appellees, Orlando Harrison and George A. Harrison, copartners trading as "Harrison's Nurseries, J. G. Harrison & Sons, Proprietors," were large growers and shippers of fruit trees, fruit, vegetables, etc., with an office at Berlin, in Worcester county, Md. The appellant, the Eastern Shore Brokerage & Commission Company, a Maryland corporation, was engaged at Preston, in Caroline county, Md., in selling canned goods for packers on commission, and in the summer of 1919 had a contract with Edgar R. Loweree, who was operating a canning factory at Willards, in Wicomico county, Md., under the name of the Willards Canning Company, by which, in consideration of supplying the canning company with cans and other materials, the appellant was to receive the entire pack of the canning company for sale for a commission of 5 per cent.

On August 12 or 13, 1919, the canning company, through the son of Edgar R. Loweree, applied to the appellees for several "truck loads or more" of peaches, and was referred to G. Hale Harrison, the treasurer and sales manager of the appellees. Mr. Harrison told him that, as the canning company was a new concern, he could not let him have the peaches unless the company deposited the money to pay for same or gave the appellees a satisfactory "guaranty." Mr. Loweree said that the canning company "was closely affiliated with the Eastern Shore Brokerage & Commission Company at Preston," of which Mr. Walter M. Wright was president and James A. Colbert was sales manager, and Mr. Harrison replied that he had never heard of the brokerage company, but did know "Walter M. Wright personally," and that if he (Mr. Loweree) could make proper arrangements with the brokerage company the appellees "would try to do some business with him." The following day the appellees received a telephone call from the brokerage company at Preston, and when Mr. G. Hale Harrison answered the call he was told that it was the brokerage company and that Mr. Colbert was speaking. In the telephone conversation that followed, Mr. Colbert, after learning from Mr. Harrison what the appellees had to sell, told him that the brokerage company was interested in the canning company, and in purchasing "raw materials" (fruit, etc.) for the canning company; that the brokerage company had the exclusive right to sell the pack of the canning company, and wanted to get fruit, etc., for the canning company to pack so as to increase the sales of the brokerage company, and wanted the appellees to furnish fruit to the canning company. At the close of the telephone conversation, Mr. Harrison asked Mr. Colbert to have the brokerage company confirm his statements by letter, and accordingly on the 14th of August, 1919, the appellees received the following letter from the brokerage company:

"The Eastern Shore Brokerage & Commission Company. Reliable Service. Code Armsby. Walter M. Wright, President. James A. Colbert, Mgr. of Sales, Preston, Maryland, Aug. 14, 1919. J. G. Harrison & Sons, Berlin, Maryland-Gentlemen: With reference to the telephone conversation we had with your Mr. Hale Harrison to-day we hereby guarantee the payment of 1,000 baskets of peaches sold to Willards Canning Company at Willards, Maryland, at 50c. per basket.

For your information, wish to say that we are handling this pack exclusively, and that all their goods go through our hands, and we will see that you are paid for any goods you sell them, but would like you to keep us advised as to the quantity and the amounts, so that we can keep some check on what they are doing. Yours very truly, The Eastern Shore Brokerage & Commission Co., J. A. Colbert, Mgr. of Sales. JC/AL."

Relying upon this letter of the brokerage company, the appellees, from August 14 to October 3, 1919, sold the canning company peaches, apples, and pears to the value of $4,952.73, and mailed to the brokerage company, on the day of shipment or delivery, a copy of the bill of each sale of such fruit. On August 23 and October 15, 1919, the appellees received checks to the amount of $1,510 on account of the fruit sold the canning company, leaving a balance due of $3,442.73. The fruit canned by the canning company was, by direction of the brokerage company, shipped by the canning company to the Terminal Warehouse in Baltimore, and the receipts for same turned over to the brokerage company, and was still "in storage" in the warehouse at the time of the trial in the court below. After repeated demands on the canning company and the brokerage company for payment of the balance due, this suit was instituted by the appellees against the brokerage company in the circuit court for Caroline county, and was subsequently removed to the circuit court for Queen Anne's county for trial.

The narr. contains the common counts in assumpsit and a special count on the contract contained in the letter of August 14, 1919, and the only pleas filed by the defendant were "never was indebted as alleged" and "never promised as alleged." During the trial, which resulted in a verdict and judgment for the plaintiffs, the defendant reserved 28 exceptions, all of which are to rulings of the court on the evidence, except the twenty-eighth, which is to the granting of plaintiffs' second prayer, the rejection of the defendant's nine prayers, and the overruling of defendant's special exception to plaintiffs' second prayer. As the special exception is not in the record, it will not be necessary to refer to it again.

In their brief filed in this court counsel for the appellant say:

"The record contains 28 bills of exception-27 being taken to rulings on the evidence, and 1 to rulings on the prayers. Nevertheless, the main questions involved are few and simple. They may be classified as follows: (1) The question of the construction of Colbert's letter; i. e., whether it was ever intended to create a legal guaranty without restriction, qualification, or limit. (2) The question whether the alleged guaranty, if it was given, was ultra vires of the defendant corporation, and so unenforceable. (3) The question whether Colbert acted within the scope of his authority, as agent of the defendant, in giving the alleged guaranty. (4) The question whether evidence offered by the appellant bearing upon the scope of Colbert's authority ought not to have been received. (5) The question whether notice of sales to Willards Canning Company mailed to defendant was sufficient, though never received."

1. Taking up these several questions in the order suggested by the appellant, we find no support in the letter itself, or in the circumstances under which it was written, to warrant the contention of the appellant that it was not intended as an "absolute guaranty beyond the 1,000 baskets" of peaches mentioned in the first paragraph. The language of the second paragraph is equally as explicit. "We will see that you...