Harford Metal Products Corp. v. Tidewater Express Lines, Inc.

• Decision Date: 24 March 1944
• Docket Number: 35.
• Citation: 36 A.2d 677,183 Md. 105
• Parties: HARFORD METAL PRODUCTS CORPORATION v. TIDEWATER EXPRESS LINES, Inc.
• Court: Maryland Court of Appeals

36 A.2d 677

183 Md. 105

HARFORD METAL PRODUCTS CORPORATION v. TIDEWATER EXPRESS LINES, Inc.

No. 35.

Court of Appeals of Maryland

March 24, 1944

Appeal from Circuit Court, Harford County; Frederick Lee Cobourn Judge.

Suit in replevin by Tidewater Express Lines, Inc., against Harford Metal Products Corporation. Trial by the court sitting without a jury resulted in judgment for plaintiff, and defendant appeals.

Judgment reversed, and judgment entered in favor of defendant for return of the property replevied.

Seller by accepting buyer's trade acceptance for balance due on machine which carrier mistakenly delivered to buyer without obtaining surrender of original bill of lading properly endorsed as required by delivery receipt, extending time for payment of trade acceptance and treating transaction as completed sale ratified erroneous delivery so as to relieve carrier of liability for conversion.

Lee I. Hecht and Isaac Hecht, both of Baltimore, for appellant.

J Wilmer Cronin, of Aberdeen, for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, and BAILEY, JJ.

MARBURY Judge.

This is a suit in replevin brought in the Circuit Court for Harford County by the appellee, a common carrier, against the appellant to recover an automatic screw machine valued at $3,600. The appellant filed pleas of non cepit, property in itself, and no property in the appellee. The case was heard before the court sitting without a jury. At the close of the case, prayers were offered, which the court passed upon, and then gave an oral opinion, entering a verdict in favor of the plaintiff for the return of the property and one cent damages and costs. On this verdict a judgment absolute was entered and from that judgment this appeal was taken.

It may be noted, in order to avoid some confusion seeming to exist in the trial courts, that under Trial Rule 9 of Part 3 of the General Rules of Practice and Procedure of this court, which has to do with cases tried before the court without a jury, no prayers or requests for instructions are required, and no exceptions to such instructions are necessary. It is not improper to offer prayers, in order to present to the court distinctly the issues of law which the parties wish considered, but when such a case comes here on appeal, it is heard according to the practice in equity. We review both the law and the evidence, and determine, from the whole case, whether the trial court is correct in its interpretation of the law. We do not pass specifically upon prayers in such cases, and prayers are unnecessary for purposes of review. Their value in such cases, if they have any, is only as a method of letting the trial court know the respective contentions of the parties.

There is little, if any, dispute in the record about the facts in this case. The appellant, a corporation engaged in the manufacture of airplane parts, purchased from the Triplex Machine Tool Company the Swiss type automatic screw machine in controversy here for the sum of $5,200, of which one-third was paid in cash with the order. The balance was to be paid on delivery. The machine was shipped on account of the Triplex Company from Dayton, Ohio, through the Universal Car Loading and Distributing Company and the appellee, the Tidewater Express Lines, Incorporated, to the order of Triplex with instructions to notify the appellant at Aberdeen, Maryland. The delivery receipt of the Universal Car Loading and Distributing Company, the originating carrier, was introduced in evidence. It contained a statement, 'Del Only on Surr Orig B/L Propend', which is interpreted to mean, Deliver only on surrender original bill of lading properly endorsed. The original bill of lading was sent through the Federal Reserve Bank to the First National Bank of Aberdeen with a sight draft for $3,535 on the appellant. Had the transaction gone through as planned, the appellant would have taken up the draft, gotten the original bill of lading, presented it to the appellee when the machine was brought to appellant's place of business, and there would have been a complete settlement and delivery. This, however, was not the way it happened.

The appellee, hereinafter called Tidewater, received the shipment on June 1, 1943, and its general manager testified that when its clerk wrote up Tidewater's way bill, through an error, he left off the notation, above quoted, for delivery on surrender of the bill of lading. When Tidewater's driver delivered the machine on June 2, 1943, he did not get the original bill of lading. At that time, there had arisen some dispute about the machine between appellant and Triplex, and appellant had declined to pay the draft, had not, of course, gotten the bill of lading from the bank, and at first refused to accept the machine from the driver, but finally, on the latter's insistance, did so, and paid the shipping charges. Thereafter a number of telephone calls and telegrams were made by the appellant to Triplex, and finally on June 26th, the president of appellant told Triplex that the machine would not be paid for, unless Triplex lived up to its agreement to send its set-up men to operate the machine. On June 28th, the president of appellant sent Triplex a trade-acceptance, due in two weeks, and stated in his letter that two weeks would be plenty of time to have the machine in operation, and when Triplex did get it in operation the appellant would pay the balance due. This trade-acceptance was for $3,535 and was to be paid on July 12th. A letter was received by the appellant by return mail from Triplex thanking it for the trade-acceptance, and stating that if the appellant would bear with it for just another short period of time, it might rest assured that in the near future its three screw machines (there were two others the appellant had previously gotten) would be humming day and night to its complete satisfaction. About the middle of July, Triplex's Mr. Grano, who was to service these machines, came to appellant's place of business to get the machines started. The trade-acceptance had not been paid because this visit had not been made before the time it was due, although Triplex had sent it to a Maryland bank for collection. Just before the Triplex man arrived, the appellant received a letter from Triplex making a suggestion as to the financial end of the situation. Triplex's men were to come to Aberdeen the following week, fix the machines so that they would run satisfactorily, then a spindle attachment was to be put on one of the machines, and it was to be demonstrated by the Triplex operators. When this had been done, the Triplex man would present the protested trade-acceptance and the appellant would pay it. Appellant's president testified that after receipt of this letter the Triplex men came to the plant, but were unable to make the machines operate properly, and his company did not pay, because the machines were not operating. On July 28th appellant telegraphed Triplex asking what disposition it wanted made of the two machines, since they did not seem to do the job for which drawings had been submitted. Response received to that telegram from Triplex was that the appellant could do anything with the machines it wished. One of these machines was the one in question here. There was another machine, which entered somewhat in the question of non-payment. After the original transaction between appellant and Triplex, the latter suggested that appellant should have a three spindle attachment at a cost of $1,140. Appellant sent Triplex $1,140 for one of these attachments, but the attachments were later supplied to appellant by the War Production Board. Triplex according to appellant had not only one-third of the original cost of the replevied machine, but also this $1,140, and appellant had this in mind also when it refused to pay the trade-acceptance.

Meanwhile, Tidewater in the latter part of June discovered its mistake in delivering the machine without getting the bill of lading, and its manager went to see the president of appellant. He was there shown the letter from Triplex, already referred to, in which the latter thanked appellant for the trade-acceptance. Subsequently, Triplex made demand on Tidewater for the sum of $3,535 which was the amount of the draft. The Universal Car Loading and Distributing Company, the originating carrier, also made demand on Tidewater. On August 7th, 1943, after a futile meeting between representatives of Triplex and appellant, the replevin proceeding was instituted by Tidewater. The draft was returned by the First National Bank of Aberdeen to the Federal Reserve Bank at the latter's request on July 1st, 1943. This was immediately after the appellant had sent and Triplex had received the trade-acceptance.

It is well settled by the decisions of this court that it is not necessary for the plaintiff in an action of replevin to prove ownership of the property. It is sufficient if the proof shows a right of possession in the plaintiff. The nature of the right, i. e., whether it...