Furness-Withy & Co. v. Fahey
| Decision Date | 11 November 1915 |
| Docket Number | 36. |
| Parties | FURNESS-WITHY & CO., Limited, v. FAHEY. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Morris A. Soper Judge.
Action by John T. Fahey, trading as John T. Fahey & Co., against Furness-Withy & Co., Limited, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and STOCKBRIDGE, JJ.
John B Deming and George Whitelock, both of Baltimore (Whitelock, Deming & Kemp, of Baltimore, on the brief), for appellant. John G. Schilpp and R. E. Lee Marshall, both of Baltimore, for appellee.
This is the second appeal in this case. The facts out of which it arises are fully set out in connection with the decision of the prior appeal, reported in 124 Md. 110, 91 A. 800, and the case of Furness, Withy & Co. v. Gill & Fisher, 124 Md. 101, 91 A. 797. In the first appeal this court passed upon the pleadings, the refusal of the court to admit certain evidence, and the instructions given to the jury, and the case was remanded for a retrial, because of the errors pointed out in the opinion referred to, in order that the question of whether the three contracts, dated, respectively, September 21st, 23d, and October 4th had or had not been modified by a notification by the appellant and of John T. Fahey & Co., and if those contracts had been modified, then to determine what the contracts between the parties were.
On the second trial of the case, the pleadings having been completed in accordance with the opinion of this court, there was left for the determination of the jury, under the stipulation of the parties, only the questions above indicated. As now presented the case comes to this court upon ten exceptions, reserved to the rulings of the superior court upon questions of evidence, none in any way involving the instructions given to the jury, and whether those instructions were correct or not is not now before this court for consideration.
While the exceptions are ten in number, they all were reserved upon a single theory, so that a seriatim discussion of them is not necessary to a conclusion of this case.
By the pleas which had been filed, the defendant set up as a defense to the plaintiff's recovery, under the three several contracts of September and October, that there had been a parol modification of them, and that modification consisted in notifications on December 2d designating the ship "Amana" as the particular vessel to carry the grain contracted to be transported by the original contracts; these notifications were in practically identical form as follows:
Of such notice it was said in Furness, Withy & Co. v. Gill & Fisher, 124 Md. 107, 91 A. 797:
"The effect of this was to render more definite, in one particular at least, the terms of the original contract; and the assent to it on the part of the shipper amounted to a modification of the original contract by mutual consent at a time when it was perfectly competent for the parties so to do, and substitute a particular ship, in place of an open contract which would be gratified by the sending of any ship of that line."
That language was predicated upon the assumption that the words used had a definite, well-understood meaning, and that it was the same in the minds of both parties to the contracts. If such was the case then the jury would have so found; but if in point of fact there was not such common understanding, then there had been no meeting of the minds, and therefore no modification of the original contracts. This was a question of fact to be determined by a jury; not one of law for the court. The questions put to the witnesses to which objections were made, and to the admission of answers to which the exceptions were reserved sought in one way or another to show what the understanding of the parties was with respect to the nomination of December 2d. It must be borne in mind that the suit as instituted declared on the original contracts, and that the alleged modification of them had been set up by the defendant, thus casting upon it the burden of proving such modification.
The appellant now claims that in showing the understanding of the meaning of the notification of December 2d and the of the plaintiff thereon, the plaintiff is restricted to evidence of acts, and cannot show by parol testimony what that understanding was, because to do so would infringe the rule that parol evidence cannot be...
To continue reading
Request your trial