Hercules Powder Co. v. Harry T. Campbell Sons Co.

• Decision Date: 24 January 1929
• Docket Number: 65.
• Citation: 144 A. 510,156 Md. 346
• Parties: HERCULES POWDER CO. v. HARRY T. CAMPBELL SONS CO.
• Court: Maryland Court of Appeals

144 A. 510

156 Md. 346

HERCULES POWDER CO. v. HARRY T. CAMPBELL SONS CO.

No. 65.

Court of Appeals of Maryland

January 24, 1929

On Modification of Judgment April 3, 1929.

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr. Judge.

Action by the Hercules Powder Company against the Harry T. Campbell Sons Company, in which defendant filed a counterclaim. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Offutt J., dissents to modification of judgment.

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

Charles Markell, of Baltimore (Joseph L. Donovan, of Ellicott City and J. Howard Murray, of Towson, on the brief), for appellant.

Edward H. Burke, of Baltimore (James P. Kelley, of Towson, James Clark, of Ellicott City, and Bowie & Burke, of Baltimore, on the brief), for appellee.

PARKE J.

The Hercules Powder Company, appellant, brought suit on the common counts in assumpsit against Harry T. Campbell Sons Company, Inc., appellee, to recover $2,143.79 for dynamite and fuse sold and delivered by it to the defendant. The defendant filed the general issue pleas and a third special plea setting up a counterclaim growing out of damages alleged to have been sustained by the defendant in the use of the dynamite and fuse at its quarry. The court rejected the defendant's only prayer and the first nine of the plaintiff, and granted its tenth prayer, which left the case with the jury on the single instruction that, if the jury found for the plaintiff, the allowance of interest was discretionary. The verdict of the jury was in favor of the defendant for $22,602.22, and, from the judgment on this verdict, the appeal is taken.

The third plea presented the counterclaim by six separate counts. There was a joinder of issue on the general issue pleas, and a replication to the third plea of counterclaim. The defendant demurred to the replication, and, after the demurrer had been sustained by the circuit court for Baltimore county, the case was removed to Howard county. By leave of the court the defendant filed an amended sixth count in its plea of counterclaim, and the plaintiff refiled its replication, and the defendant renewed its demurrer, which was likewise sustained by the circuit court for Howard county, so the demurrer to the plaintiff's replication, which mounted to the first error in pleading, can be treated as the pleadings stood after the amendment of the sixth count of the third plea.

The first count in the third plea was on the theory that the plaintiff had sold, and the defendant had bought, the dynamite and fuse upon the express warranty by the plaintiff to the defendant that its dynamite, when placed in holes of a size, number, and location as designated by the plaintiff and exploded under its direction and control, would blast the rock of the defendant's quarry between a line drawn through the bored holes in which the dynamite would be placed and the face of defendant's quarry, and would cause the rock so blasted to be thrown on the floor of the quarry, and to be broken up so that at least 80 per centum thereof would be immediately ready for defendant's stone crushers, and that the face of the quarry would be left substantially perpendicular, smooth and even, and suitable for further quarrying operations; but that, although all conditions had been fulfilled by the defendant when the plaintiff had exploded the dynamite, the result was, without any fault of the defendant, a complete breach of such express warranty, to the great loss and damage of the defendant and its business. The second count is for a similar express warranty, but was based upon a contract to supply dynamite of a quality and quantity to be determined by the plaintiff and to be exploded by the defendant in existing holes which it had located and had drilled. The third, fourth, and fifth counts are based upon slightly variant allegations, from which an implied warranty of like tenor to that set up in the first and second counts is stated to arise. As these three counts were withdrawn before the prayers were granted, there is no necessity to pass upon their legal sufficiency nor to set forth their diffierences. The amended sixth count is also on the theory of a breach of an implied warranty. After alleging that the defendant was engaged in the operation of a certain quarry and in the sale of its products, and that the plaintiff was a manufacturer and seller of dynamite, explosives, and blasting powder fuses, the sixth count further alleges that the plaintiff, with this knowledge, visited the quarry and proposed to the defendant that the plaintiff would determine and furnish the grade and quantity of each grade of the plaintiff's dynamite that would be required, when placed in certain well holes to be bored and exploded by the defendant, to blast the rock between a line drawn through said well holes and the face of the quarry, in consideration of the defendant's promise to pay for the dynamite of such grades and quantities at certain fixed prices, and that the defendant, having no knowledge of the use of dynamite in well holes and relying on the knowledge of the plaintiff, entered into a contract for the purchase of the dynamite, that impliedly warranted that dynamite of quality and quantity as determined and furnished by the plaintiff, when placed in said well holes and exploded in an ordinarily careful and skillful manner, was reasonably suited to blast the rock between the said line and face of the quarry. The breach alleged is that the plaintiff furnished too much dynamite and dynamite of too great strength was determined and furnished by the plaintiff for the aforesaid purpose, with the result that not only was the stone blasted between the line and the face of the quarry, but the stone was blasted in all directions, and in great masses, causing large crevices in the rocks that remained, destroying a large part of the face of the quarry, and affected the marketableness of the rock and sand brought down by the blast by mixing with it quantities of red clay which was dislodged by the explosion.

Under these averments it appears that the buyer made known to the seller the particular purpose for which the dynamite was required, and showed that he relied upon the seller's skill in the manufacture of explosives which were bought, so there is an implied condition that the goods furnished should be reasonably fit for the purpose of blasting the stone. Code, art. 83, § 36. The fitness of the goods was their quality and capacity, and there is no allegation from which it can be deduced that the goods delivered and used were defective in any respect, or that their effect was attributable to any other cause than that the buyer left to the seller the duty of "determining" the grade and quantities of each grade of its dynamite required for the specific purpose, and that, in making this determination, the seller specified dynamite in quantities and strength in excess of what proved to be necessary. There is no intimation that the seller acted negligently or wrongfully in making its estimate, so it must be assumed that its conclusion was an honest expression of expert opinion upon the facts available during an inspection of the quarry. Consequently, the result of which the pleader complains is not ascribable to the fitness of the dynamite sold for the purpose in view, but to an error in judgment or opinion, which the buyer must have known was a possibility implicit in the seller's offer and so to be a chance taken by the buyer in accepting the offer, since the seller's determination was necessarily dependent upon the exercise of its judgment and opinion when applied to a problem, whose factors could not all be known. The contention of the defendant would enlarge the obligation of an implied warranty of fitness for a particular use, to an assurer of a result which is not imputable to the quality and capacity of the goods sold but to an error of opinion, which must be taken, under the pleadings, to have been carefully and honestly formed. An express contract would have to be set forth to bind the seller as an assurer, and this the amended sixth count did not do. As the count is bad on this ground, no others need be considered.

The first and second counts of the defendant's third plea are on a contract, with an express warranty, and severally set up a good cause of action, without being bad for duplicity. Rittenhouse, Winterson Auto Co. v. Kissner, 129 Md. 102, 104-106, 98 A. 361. Neither count combines several distinct matters in support of a single demand. Poe's Pleading (Tiffany Ed.) § § 734, 737.

The plaintiff filed his replication to the several counts of the defendant's plea of counterclaim, which admits the sale and delivery of certain explosives, and then denies in general terms that the plaintiff had agreed to perform any work or services in connection with the sale or had made any express or implied warranty whatsoever, but that the blasting was done pursuant to a written agreement, which is embodied in the replication, and which is here inserted because of its importance:

"Hercules Powder Company, Wilmington, Delaware.

Dated 12/22, 1925.

Whereas, the undersigned customer has requested certain assistance of the Hercules Powder Company in connection with the performance of certain blasting operations; and,

Whereas the Hercules Company is not engaged in blasting work, its business in explosives being confined solely to the manufacture and sale thereof, but to assist said customer the said Hercules Company has agreed to permit said customer the temporary use, free of charge, of the services of said Company's employees, together with certain needed equipment, on the...