Greer v. Whalen, 74.

• Court: Court of Appeals of Maryland
• Citation: 93 A. 521,125 Md. 273
• Docket Number: No. 74.,74.
• Parties: GREER et al. v. WHALEN.
• Decision Date: 27 February 1915

93 A. 521
125 Md. 273

GREER et al.
v.
WHALEN.

No. 74.

Court of Appeals of Maryland.

Feb. 27, 1915.

Appeal from Baltimore Court of Common Fleas; John J. Dobler, Judge.

"To be officially reported."

Action by Prank Whalen against Milton C. Greer and Thomas A. Davis, copartners trading as Greer & Davis. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

S. S. Field, of Baltimore (Wm. F. Pirscher, of Baltimore, on the brief), for appellants. Edward M. Hammond, of Baltimore, for appellee.

PATTISON, J. The appellee, a merchant of Baltimore City, was in the year 1909 the owner of a farm near Ellicott City, in Howard county, and the appellants were dealers in live stock at the Union Stockyards in said city. The appellee in the fall of each year for a number of years prior to that time had bought from the appellants small young cattle, known as stock cattle, and had placed them upon his farm, where they were fattened and improved, and were thereafter, in the succeeding year, sold at the stockyards through the agency of the appellants.

According to the evidence offered on the part of the appellee, he, in the fall of 1909, called a number of times at the stockyards, but could not find there any cattle to suit him. It was then that the appellants suggested that he let them sell to him, to be shipped from Chicago, "heifers the same as he had been buying of them" at the Baltimore stockyards in the previous years. The price therefor f. o. b. Chicago would be $2.75 or $2.80 per hundredweight; certainly not exceeding $2.85. The appellee testifies that, as a result of this suggestion and offer, an agreement was then and there entered into by and between them, by which the appellants sold to him, to be delivered in good condition on the cars at Chicago, at and for the sum of $2.75, and not to exceed $2.85 per hundredweight, one car load of sound, thrifty, young heifers, not to exceed 40 in number, of the class and type he had previously been buying from them; and it was understood and agreed that the cattle so purchased should be dehorned, and that there were to be no white ones or Jerseys among them. This contract or agreement was made about November 29th, a few days before the appellee was to start for the South, and as he was not to return for several weeks, he left with one Rogers, with whom he was in some way associated in the mercantile business, his check signed by him and drawn to the order of the appellants, with the amount blank, but with direction to Rogers to fill in such blank with the amount given to him by the appellants when the exact weight and price of the cattle were ascertained and communicated by them to him.

93 A. 522

He then notified the appellants of this arrangement.

The cattle were shipped from Chicago on Thursday, the 9th day of December, and arrived in Howard county on Sunday afternoon, the 12th day of December, three days thereafter, but, instead of putting them off at Hollofields Station, they were carried to Ellicott City, because, as stated, there was no chute at Hollofield by which they could have been unloaded.

On the 13th day of December the appellants wrote to Rogers inclosing statement giving the weight as well as the price of the cattle. The price, as stated therein, was so much as $3.25 per hundredweight for 17 of the cattle and $3 per hundredweight for the remaining 23. In their letter to Rogers the appellants stated to him that, upon the return of the statement with check for amount shown by the statement to be owing by appellee, they would receipt the statement and forward it to him. Rogers, in response to this request, filled in the check for the amount stated in the inclosure to him, and, with the statement, sent it to the appellants on the 14th day of December, and it was thereafter indorsed and used by the appellants. The statement which was receipted and returned to Rogers was given by him to the appellee upon his return from the South. The appellee, before leaving for the South, directed Tucker, the manager of his farm, to get the cattle upon their arrival at the station and take them to the farm. They arrived at Ellicott City, as we have said, on Sunday afternoon between 2 and 3 o'clock, but it was not until nearly dark that Tucker got word from the station agent that the cattle were there. It was then too late to get them to the farm that evening, the farm being several miles away, and thus they were required to remain all night in the open pen at the station. On the following morning, I however, Tucker started with them from the station, but owing to their condition, "two of them fell on the road and had to be rested well before he could get them home." he describes their condition at that time as being "a terrible looking lot of cattle, running at the nose, sore eyes, and seemed to have sore throats."

David Whalen, son of the appellee, and at that time a medical student living at Baltimore, visited the farm at least once a week. He saw the cattle on December 14th and frequently thereafter, and, when asked to describe their condition when he first saw them, the second day after their arrival, he said of them that they were poor, their coats were rough, they had pus formation in the eyes, or around the...