Eckenrode v. Chemical Co. of Canton of Baltimore County

• Decision Date: 09 December 1880
• Citation: 55 Md. 51
• Parties: TOBIAS ECKENRODE v. THE CHEMICAL COMPANY OF CANTON OF BALTIMORE COUNTY.
• Court: Maryland Court of Appeals

55 Md. 51

TOBIAS ECKENRODE v. THE CHEMICAL COMPANY OF CANTON OF BALTIMORE COUNTY.

Court of Appeals of Maryland

December 9, 1880

APPEAL from the Circuit Court for Carroll County.

The case is stated in the opinion of the Court.

Exceptions.--At the trial it was admitted that the defendant was a corporation incorporated under the Act of 1868, ch. 471, the General Incorporation Law of the State of Maryland.

First Exception.--The plaintiff then offered to prove that the paper set forth as the contract in the opinion of the Court, was in the hand-writing of W. C. Matheson, and that the signature thereto was in his hand-writing, and that the signature of defendant was in defendant's hand-writing, and that said Matheson was an agent of plaintiff and was appointed by the secretary of plaintiff with the approval of the president of plaintiff, and that said appointment was made verbally and approved by said president verbally. The defendant objected to the competency and admissibility of said proof offered. The Court, (HAYDEN J.) overruled the objection and permitted the proof offered to be given to the jury. The defendant excepted.

Second Exception.--The plaintiff then gave in evidence the facts in offer of proof in first exception, and offered to read in evidence the said paper as and for a contract between plaintiff and defendant. The defendant objected. The Court overruled the objection, and permitted the same to be given in evidence, as and for a contract as aforesaid. The defendant excepted.

Third Exception.--The plaintiff then proved by the defendant as a witness, that at the time of the execution of said paper, the defendant gave to said Matheson the formula referred to in said paper and which was endorsed on the same. The plaintiff further proved by the defendant that on the 1st July, 1879, he, the defendant, went to the plaintiff's office on Charles street, in Baltimore City, and spoke of the paper given in evidence as a contract, which was exhibited to him, and he referred to the formula thereon, and said it was all right; and then offered to prove that on said occasion the defendant said to the secretary of plaintiff that there was not much money in said contract for the plaintiff, and that the plaintiff had better let him, the defendant, throw up the contract and let him get all his goods from one man, for the purpose of proving that the defendant was unwilling to comply with the said contract, and his refusal to comply with the same, and the causes and reasons of said unwillingness and refusal. The defendant objected to the admissibility of said proof offered, and the Court overruled the objection; whereupon the defendant excepted.

Fourth Exception.--The defendant having answered the question as proposed in the last foregoing offer, in the negative, the plaintiff further proved by the defendant, the facts set forth in the opinion of the Court, as to what occurred on the 1st July, 1879.

Fifth Exception.--The defendant's attorney on cross-examination of defendant as a witness offered to prove the facts set forth in the Court's statement of this exception.

The purpose of the offer of this evidence was to show that it was understood by and between said purporting agent and defendant, at the time said contract was entered into, that defendant was to superintend the manufacture of the phosphate in the contract mentioned, for the express purpose of the defendant's seeing and knowing that said phosphate was manufactured in the same manner in which defendant manufactured the same at Taneytown; and that the purpose stated was the sole and only reason for the insertion in the contract of the provision relating to superintendence by defendant, and that the words relating thereto, contained in said contract, were used therein for the purpose and with intent, of both said purporting agent and defendant, of embodying and expressing said purpose; and that when said contract was made, it was understood by and between said person who signed the same as agent and defendant, that the words therein, touching superintendence of defendant, were so inserted and used with intent to secure to defendant assurance that said phosphate would be made in same manner as defendant had manufactured phosphate at Taneytown.

Sixth Exception.--The evidence admitted by the Court below under this exception is stated in this Court's opinion in connection with that contained in the third exception, the plaintiff having offered to prove by Mr. Bernard Baker, secretary of the plaintiff, what defendant said in witness' presence on the 1st July, 1879.

Seventh Exception.--The letter admitted in evidence under this exception and the answer to it, are set forth in the opinion.

Eighth Exception.--The question objected to by the plaintiff in this exception, is stated in the opinion.

Ninth Exception.--This is sufficiently stated in the opinion.

Tenth Exception.--The defendant then offered to prove by ____ Linton, that in September, 1879, he applied to the plaintiff to buy a quantity of South Carolina bone, and was told by plaintiff, that plaintiff had none on hand; but the plaintiff objected to the admissibility of said proof, and the Court sustained the objection and refused to permit said proof to be given; whereupon the defendant excepted.

Eleventh Exception.--After foregoing bills of exception had been taken, signed and sealed, the defendant offered further evidence, and the testimony was closed on both sides. Thereupon the plaintiff offered two prayers, and the defendant offered thirteen prayers, the substance of these prayers appears in the Court's opinion.

The Court granted the plaintiff's prayers and rejected those of the defendant. The defendant excepted. And the verdict and judgment for $1000 damages, and $14.53 costs, being for the plaintiff, the defendant appealed.

The cause was argued before BARTOL, C.J., BOWIE, MILLER, ALVEY and IRVING, J.

William P. Maulsby, for the appellant.

Charles B. Roberts, for the appellee.

MILLER J., delivered the opinion of the Court.

In this case an action was brought by the appellee, a corporation incorporated under the General Incorporation Law of the State, to recover damages from the appellant in consequence of his failure and refusal to comply with the terms of the following contract:

"Taneytown, Md., May 15th, 1879.

We have this day contracted with Mr. T. H. Eckenrode of this place for the manufacture of two hundred tons of phosphate by his formula and to be branded with his brand. The goods to be manufactured between July 15th and July 30th, 1879. T. H. Eckenrode is to superintend the making of it. These goods are sold to him on the following terms, viz: He is to give his notes, one payable the first day of October, 1879, with interest; the other payable first day of January, 1880, and to bear interest from the first day of October, 1879. The goods are to cost twenty-five dollars per ton. He has the privilege of increasing above order one hundred tons more if done before the 30th of July.

Chemical Co. of Canton,

Per W. C. Matheson, Agt.

I accept the goods on above terms and conditions.

T. H. Eckenrode."

This contract though evidently the work of an unskilful hand, is yet so plain as not to leave its construction in any manner of doubt. It imposes upon the company the obligation and duty to manufacture the specified tons of phosphate between the named days, according to Eckenrode's formula, and under his superintendence, to brand them with his brand, and to deliver, or tender delivery of them to him when so manufactured. Upon Eckenrode it imposes the obligation and duty to furnish his formula, to attend or proffer himself ready to attend and supervise the work of manufacture between the days specified, to receive the two hundred tons when so made, and to pay for them the price of twenty-five dollars per ton, by giving his notes therefor payable at the specified dates, with interest from the times stated.

The suit was brought on the 9th of August, 1879, and the declaration after setting out the contract, avers that the plaintiff was ready and willing and prepared in all respects to manufacture the two hundred tons of phosphate according to the agreement, and also the additional one hundred tons, at and between the time and times, and according to the terms and conditions of the agreement, and had furnished and provided for the manufacture thereof the requisite materials and appliances according to the formula furnished by the defendant, and in pursuance of the terms of the agreement. It then assigns and avers as a breach "that on or about the fifth day of July, in the year 1879, the defendant countermanded the order for said phosphate, and notified the said plaintiff that he would not accept and purchase said phosphate if made by the said plaintiff, and refused utterly to fulfil and perform his undertakings, agreements and contracts as aforesaid under said agreement." The question first and mainly argued in the case is, whether this countermanding of the order by the defendant and his refusal to accept and purchase the phosphate if manufactured, made and announced to the plaintiff before the time of performance as stipulated by the contract had arrived, constitutes a good ground of action; and as to this we entertain no doubt.

In the case of Coit vs. Ambergate, &c., Railway Co., 17 Adol. & Ellis, N. S., 117, it was decided by the Court of Queen's Bench that where there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser having paid for and accepted a portion of the goods contracted for, gives notice to the vendor not to manufacture any more, as he has no occasion for them, and will not...