Eastern Shore Trust Co. v. Lockerman

• Decision Date: 29 June 1925
• Docket Number: 51.
• Parties: EASTERN SHORE TRUST CO. v. LOCKERMAN.
• Court: Maryland Court of Appeals

129 A. 915

148 Md. 628

EASTERN SHORE TRUST CO. v. LOCKERMAN.

No. 51.

Court of Appeals of Maryland

June 29, 1925

Appeal from Circuit Court, Wicomico County; Joseph L. Bailey and Robt. F. Duer, Judges.

"To be officially reported."

Garnishment proceedings by the Eastern Shore Trust Company, a corporation, against Charles A. Lockerman, garnishee of the Eastern Shore Brokerage & Commission Company, a corporation. From a judgment for defendant, plaintiff appeals. Affirmed.

See also, 146 Md. 330, 126 A. 140.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and WALSH, JJ.

F. W C. Webb, of Salisbury (J. Richard Jones, of Cambridge, and Woodcock & Webb, of Salisbury, on the brief), for appellant.

F. Leonard Wailes, of Salisbury (Ellegood, Freeny & Wailes, of Salisbury, and Stanley G. Robins, of Crisfield, on the brief), for appellee.

OFFUTT J.

The Eastern Shore Trust Company, on June 10, 1922, took a confessed judgment against the Eastern Shore Brokerage & Commission Company, called herein the brokerage company, for $4,485.10. In September, 1919, Charles A. Lockerman, a canner operating at Crisfield, Md., had 1,500 cases of pears which he wished to sell, and as a result of negotiations between him and James A. Colbert, general manager of the brokerage company, the latter sent Lockerman its check for $5,000. Later it asserted that the $5,000 was loaned to Lockerman, but he claimed that the brokerage company had bought his pears at $3 a dozen cans, and that the $5,000 was paid on account of the purchase. The Eastern Shore Trust Company, on the theory that the transaction was a loan, caused an attachment on its judgment to issue and to be laid in Lockerman's hands to bind his supposed indebtedness to the brokerage company.

The case was tried twice in the circuit court for Wicomico county; the first trial resulted in a judgment for the plaintiff which was reversed on appeal by this court, and the second in a judgment for the defendant, from which this appeal was taken. There are eleven exceptions in the record, ten of which refer to questions of evidence, and one to the court's action on the prayers.

The main and indeed the only issue in the case was whether the transaction between Lockerman and the brokerage company was a sale or a brokerage contract. If it was a sale, Lockerman owed the brokerage company nothing, but on the contrary it was indebted to him, and the appellant was not entitled to recover. If it was a brokerage contract, then Lockerman was indebted to the brokerage company for the $5,000 which it had advanced to him, as well as for certain brokerage commissions on other transactions, and the appellant was entitled to recover.

The plaintiff offered four prayers, of which the first and third were granted and the second and fourth refused; and the defendant four, all of which were granted. The plaintiff's first and third prayers submitted its theory of the case fully and fairly to the jury, and we find no error in the refusal of its second prayer, nor was any point made of that ruling in this court. The prayer was unnecessarily long and needlessly confusing to a jury; it improperly segregated and unduly emphasized certain parts of the evidence; it assumed facts which should have been submitted to the jury; and, in substance, it was covered by the granted prayer.

The appellant's principal objection to the court's rulings on the prayers, however, is based upon the refusal of its fourth prayer and the granting of the appellee's third prayer. The appellant by its fourth prayer asked to have the jury instructed that there was no evidence in the case legally sufficient to show that the pears had been sold to the brokerage company, and in support of that proposition it says: (1) That there is no evidence in the case legally sufficient to show that the minds of the parties ever met in the formation of a sales contract; (2) that the alleged contract "is too vague and indefinite" to be enforceable; (3) that the evidence, if it proves a sale at all, proves a sale to Colbert in his individual capacity; and (4) that Colbert lacked authority to buy the pears for the brokerage company, and that Lockerman, as a director of the brokerage company, was charged with knowledge of Colbert's lack of authority to buy goods for it.

After what was said in Lockerman v. Eastern Shore Trust Co., 146 Md. 330, 126 A. 140, it is unnecessary to review at length all the testimony in the case relating to the first question. It is sufficient to say that Lockerman in his testimony explicitly stated:

That he had "sold" the pears to the brokerage company. That on September 25, 1919, he wrote the brokerage company the following letter: "We are shipping you 2 cans of our heavy syrup pears to-day by parcel post hoping you will be able to line some business at $3.25 per doz. We have not quoted a price to anybody less than $3.50." And that "in that letter, I quoted them $3.25 per dozen, and immediately upon receipt of that letter, he began calling me up and offering me $3 a dozen and I said, 'No,' on every occasion, and on October 9, 1919, he called me up again. He said, 'I want those pears, $3 is as high as they are going and let me have them at that price.' I said, 'Jim, I have about decided to take $3 for these pears.' He said, 'They are mine.' I said, 'No; not until I submit the samples.' I had forgotten the previous samples shipped September 25th, or I would have accepted the offer at that time and sold immediately, but I wanted to be sure that he received samples. He said, 'All right, send me samples immediately,' and then he afterwards added to send Reeves, Parvin Company of Philadelphia samples. I had my son-in-law go out and get 6 cans, get them up, and shipped them parcel post the early afternoon mail of October 9th, leaving possibly about 1 o'clock at that time. The next afternoon I shipped 3 cans to the Eastern Shore Brokerage & Commission at Preston. I shipped 3 cans to Reeves, Parvin & Co., Philadelphia. * * * On October 10th, about 26 hours after these samples were shipped, the telephone rang. John T. Handy, Williams Summers, commonly called Tiller, Mr. Riley Parks, and myself were in the office, which is a very small office about 10X12. I went to the phone, took down the receiver, and said, 'Hello,' and Mr. Colbert was at the other end. Some one said, 'Is this Mr. Lockerman? This is Mr. Colbert.' I said, 'Hello Jim.' He said, 'The samples arrived O. K.; the pears are mine; I will send you $5,000 on account immediately and shipping instructions as soon as prepared.' I said, 'All right, Jim, send me $5,000 on account, and the pears are yours.' October 11th on the early morning's mail the check for $5,000 was there, and I deposited the check, and that is the last I heard of the pears so far as he was concerned, except when I called him and asked for shipping instructions, but I am a little ahead of the story." That after that he repeatedly asked for shipping instructions, and

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