Frey & Son, Inc. v. Magness

• Decision Date: 04 December 1931
• Docket Number: 3.
• Citation: 157 A. 400,161 Md. 375
• Parties: FREY & SON, INC., v. MAGNESS.
• Court: Maryland Court of Appeals

157 A. 400

161 Md. 375

FREY & SON, INC., v. MAGNESS.

No. 3.

Court of Appeals of Maryland

December 4, 1931

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Action by Frey & Son, Incorporated, against W. Harry Magness. From a judgment for the defendant, plaintiff appeals.

Reversed and remanded.

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

W. Frank Every and J. Purdon Wright, both of Baltimore, for appellant.

Robert H. Archer, of Baltimore (William P. Cole, Jr., of Towson, on the brief), for appellee.

BOND C.J.

The appellant, a dealer in canned goods, sued the appellee, a canner, for damages from breach of a contract to sell and deliver to the appellant eight hundred cases of canned corn and the principal question in the controversy is whether the contract was for sale and delivery of the eight hundred cases unconditionally, or was for sale and delivery of that amount only of corn to be received and packed from specified crops then growing and purchased by the canner for his supply, but which failed. The trial court referred the ascertainment of the terms of contract to the jury, to be found from testimony partly in writing and partly in parol. The admission of the parol testimony was excepted to because of the existence of a written contract or bought and sold notes signed by the broker, complete in form; and reference to the jury of the ascertainment of the terms of contract was excepted to on the ground that the testimony of both parties, written and parol showed only a sale of the eight hundred cases unconditionally. Other exceptions to rulings on evidence will be discussed later.

The plaintiff's testimony was that Frey & Son, Inc., of Baltimore City, having heard in August of 1928 that storms had reduced the crops of corn, called up several brokers of canned goods in the city and asked what they had to offer in fancy Shoepeg corn. One of the brokers, Thomas L. North, trading as Meehan & Co., Inc., on August 22d, through an assistant, Cain, called the defendant in Harford county on the telephone, and arranged for the sale of the eight hundred cases of the Shoepeg corn. The parol testimony of Magness to the original conversation between them was that Cain asked what corn Magness had to sell; Magness answered that he had some planted but not matured yet, meaning the corn he had bought for his supply, and they discussed the acreage of it, and, as Magness testified, "We both thought under normal conditions we would pack eight hundred cases anyway. He said he had an order for eight hundred cases of Fancy Shoepeg corn. I told him I didn't know whether I could pack Fancy Shoepeg corn or not. He said if it was pulled young and handled nicely as it is going through the cannery it would be all right. It told him I always pulled the corn young, at least tried to and if that was all I thought I could fill the order. I guess that is about all that was said." Cain, now no longer in North's employ, testified to substantially the same effect for the defendant: That North told him, Cain, that Mr. Frey wanted to buy Shoepeg corn, and directed Cain to get in touch with some packers; Magness was one of the packers called up and asked whether he wanted to sell any Shoepeg corn; Magness told Cain the acreage he had in, and Cain said he thought Magness had enough to get eight hundred cases; and Magness "said he would take the order." Cain testified that he would have liked to get a thousand cases from Magness, but they discussed the acreage, calculated as usual in Harford county an average yield of seventy to seventy-two cases to the acre of Shoepeg, and concluded to make the sale of eight hundred cases. Thereupon, North, as the broker, prepared the written memoranda or notes of the transaction, and on the next day, August 23d, forwarded them to the respective parties with a letter saying, in that sent to Magness, that confirming the telephone conversation, "enclosed please find our contract, covering our purchase of you for account of Frey & Son, Inc., this city, 800 cases No. 2 tins 1928 pack Fancy Shoepeg Corn at $1.15 per doz. delivered fob Fallston, Md., for shipment under your label, or under buyer's label, buyer's option." And the seller's memorandum or note of contract inclosed was for the purchase and sale: "For account of Frey & Son, Inc., Howard & West Sts., Baltimore, Md., 800 cs No. 2 Fancy Shoepeg Corn at $1.15 doz." Magness testified that he received the contract on that same day, August 23. He further testified that two or three days later, Mr. Cain again called and wanted to know whether he, Magness, "would raise that eight hundred to a thousand cases," and that Magness answered, "No, nothing doing." One further telephone conversation was testified to by North, to the effect that at about the time when delivery should have been made, he, North, called and Magness said he had some corn packed and under normal conditions it would take two or three days to pack up the order. On September 8th, Magness wrote to the broker that there was an extreme shortage in his Shoepeg corn pack, and that because of storms they could ship only part of the 800 cases. Frey & Son, however, declined to accept delivery of the part; the parties were unable to agree on a substituted brand of corn; and Frey & Son sued, and offered evidence tending to prove a rise in the market price of corn such as they had bought, and damage from the breach of contract if there was one. A witness for the defendant testified on cross-examination that not all fancy Shoepeg corn packed in 1928 was sold in advance, that there was some available later, but it was scarce. Verdict and judgment having been rendered for the seller, or defendant, the plaintiff has appealed.

In the opinion of this court, the question of admissibility of the previous parol negotiations in the face of the broker's written record or note of agreement of sale does not affect the ascertainment of the terms of the contract, for we find that only one and the same contract for purchase and sale of eight hundred cases unconditionally could be found from either source. The sum and substance of the negotiations appear to be that Cain placed before Magness Frey & Son's unconditional order, and Magness, after some hesitation over his ability to furnish the specified quality or kind accepted that order and agreed to fill it. The order was not presented as that of Cain or his employer for themselves, it was presented as the order of a customer, and the customer was not present to negotiate any change or restriction upon it. Moreover, it appears that there was no doubt or hesitation in Magness' mind as to his ability to deliver the quantity; his only doubt, which was removed, was as to the quality or kind of his purchased supply. And when that doubt was removed, he agreed to fill the order as it was presented. He did not hedge his acceptance about with any restriction as to his supply; in that respect his negotiations are in contrast with those in cases in which orders or acceptances have been found so hedged about. Agri Mfg. Co. v. Atlantic...