Hewes v. Jordan

• Citation: 39 Md. 472
• Parties: JOHN HEWES and M. W. HEWES, trading as HEWES & Co., v. JAMES H. JORDAN.
• Decision Date: 17 February 1874
• Court: Maryland Court of Appeals

39 Md. 472

JOHN HEWES and M. W. HEWES, trading as HEWES & Co., v. JAMES H. JORDAN.

Court of Appeals of Maryland

February 17, 1874

APPEAL from the Court of Common Pleas.

This was an action of assumpsit by the appellee to recover from the appellants the price of certain butter grease, alleged to have been sold and delivered by the former to the latter. Pleas, never indebted and never promised. Issues joined. Evidence was offered by the plaintiff tending to prove a verbal sale by him of 3148 pounds of butter grease to the defendants at eight cents a pound. There was a conflict of testimony as to the making of an express warranty of the merchantable quality of the grease. There was no proof of part payment or any earnest to bind the bargain, nor of any contract in writing; nor was there any memorandum signed by the defendants, or any one in their behalf, other than a written order from them, dated on the day of sale, directing the plaintiff to deliver the grease to their drayman; the grease was accordingly delivered and taken to the store of the defendants The case is further stated in the opinion of the Court.

Exception.--The defendants offered the following prayers:

1. If the jury shall find from the evidence that there never was any delivery and acceptance by the defendants of the said butter grease; and if they shall further find that there was no part payment made, or earnest given to bind the alleged contract of sale of said butter grease; and shall further find that there was no note or memorandum of said contract in writing, signed by the defendants or their agent, thereunto lawfully authorized, then their verdict must be for the defendants.

2. If the jury believe that the plaintiff, before and at the time of the alleged contract of sale, referred to in this case represented that the butter grease in question was all right, free from dirt and salt, as testified to by the witness Jas. E. Hewes, and that relying upon such representations the defendants agreed to purchase the same at the price of eight cents per pound, and that the said butter grease was not in fact all right, free from salt and dirt, but on the contrary was unmerchantable, and that immediately upon the discovery of its actual condition the defendants notified the plaintiff thereof, and tendered the said butter grease to him, and never accepted the same as a compliance with the terms of the said alleged contract, then the plaintiff is not entitled to recover.

3. That in this case there is no evidence of part payment or earnest to bind the bargain, and no memorandum in writing signed by the defendants, or their agent, duly authorized, and that therefore the plaintiff is not entitled to recover, unless the jury believe that the butter grease or some thereof was delivered by the plaintiff to the defendants, and was accepted by the defendants, and that in order to constitute an acceptance, so as to bring the case within the provisions of the Statute of Frauds there must have been an actual acceptance by the defendants, with an intention of taking possession as owners.

4. That in this case even although the jury may find from the evidence that there was both a delivery of the butter grease to the defendants and an acceptance by them thereof, with an intention of taking possession thereof as owners, yet if the jury find that the said butter grease was guaranteed by the plaintiff to be a good merchantable article, and was not, in fact, a merchantable article, then the defendants immediately upon the discovery thereof, had a right to rescind the contract; and if the jury further find that the defendants did promptly notify the plaintiff of their refusal to accept the said grease as a compliance with the said alleged contract, then the plaintiff is not entitled to recover.

5. That no acceptance under the Statute of Frauds is sufficient which is other than the ultimate acceptance, and such as completely affirms the contract.

The Court, (GAREY, J.,) granted the second and fourth of these prayers, and rejected the others, and in their stead gave an instruction which will be found in the opinion of this Court. The defendants excepted to the rejection of their prayers and to the instruction given by the Court, and the verdict and judgment being against them, they appealed.

The cause was argued before BARTOL, C.J., BOWIE, ALVEY and ROBINSON, J.

Charles Poe and John P. Poe, for the appellants.

The single question now before this Court is, as to the character of the receipt and acceptance required by the Statute of Frauds; and is one which can only be decided by an examination of the authorities. It will be found, that the view of the law embodied in the defendants' rejected prayers is the correct one. The appellants' third prayer is in the precise language of Clark's Admr. vs. Marriott, 9 Gill, 335; see also, Nicholle vs. Plume, 1 Car. & Payne, 272; Kent vs. Huskinson, 3 B. & P., 233; Howe vs. Palmer, 3 Barn. & Ald., 321; Tempest vs. Fitzgerald, 3 Barn. & Ald., 680; Carter vs. Touissant, 5 Barn. & Cres., 855; Phillips vs. Bistolli, 2 Barn. & Cres., 511; Smith vs. Surman, 9 Barn. & Cres., 561; Norman vs Phillips, 14 M. & W., 277; Acebal vs. Levy, 10 Bing., 376; Morton vs. Tibbetts, 15 Q. B., 428, (14 Jurist, 669); Elliott vs. Thomas, 3 M. & W., 170; Hunt vs Hecht, 8 Exchequer, 814; Coombs vs. Bristol & Exeter R. R. Co., 3 H. & N., 510, 513; Castle vs. Sworder, 6 H. & N., 832; Maberley vs. Sheppard, 10 Bing., 99, 101; Shindler vs. Houston, 1 Comstock, 261; Caulkins vs. Hellman, 47 New York, 449; Benjamin on Sales, 110; Blackburn on Sales, 22 and 23; Outwater vs. Dodge, 6 Wend., 400; Lloyd vs. Wright, 25 Georgia, 215; Shepherd vs. Pressey, 32 N. H., 49; 2 Taylor on Evid., sec. 957.

J. V. L. Findlay, for the appellee.

The defendants' first prayer was properly rejected.

1st. Because it left to the jury, without explanation or definition, the question of " delivery and acceptance," not only a question of law, ( Clark vs. Marriott, 9 Gill, 336,) but, as appears by the appellants' brief, one of nice and accurate critical discrimination, requiring the digesting of a large mass of not harmonious authorities. Rule four respecting Appeals, 29 Md.

2d. Because it left to the jury the legal sufficiency of the written memorandum.

3d. Because it tended to mislead the jury by suggesting a legal doubt as to the question of " delivery," fully proved by all the testimony on both sides, and with respect to which there was not a scintilla of negative evidence to support that portion of the prayer,

The defendant's first and third prayers were properly rejected, because on the mooted question of "acceptance" the whole ground was covered, and that most favorably to the appellants, by the Court's instructions, including as part thereof those granted on the prayers of the appellants.

The defendants' third and fifth prayers were properly rejected, as reviving an obsolete doctrine, long since exploded, by Morton vs. Tibbett, 69 E. C. L., 429, cited in Jones vs. Mechanics' Bank, 29 Md., 296; and re-affirmed by Cusack vs. Robinson, 101 E. C. L., 297, and Currie vs. Anderson, 105 E. C. L., 598; see also Kershaw vs. Ogden, 3 Hurl. & Colt., 717.

From the prayers of the defendants which were granted, it will be seen that the lines of distinction between such an acceptance as will merely let in parol evidence of the contract under the Statute of Frauds, and a final acceptance precluding defences under the contract, were perspicuously and with scientific precision drawn for the defendants, who had the full benefit of the discrimination in their favor before the jury. Obviously the appellants in these prayers were allowed the very widest latitude of defence short of collision with the doctrine " caveat emptor," which was in fact grazed, if not hit by the second prayer. Benj. on Sales, 453.

If the prayers granted cover the defendants' case and give them the full benefit of their legal defence, the judgment will not be reversed, although the rejected prayers were correct, or although error may be found in the instructions given by the Court. Kershner vs. Kershner's Lessee, 36 Md., 334; Staylor vs. Ball, 24 Md., 201. Nor will this Court reverse upon the defendants' appeal, where it can be seen that they will not be benefited by a new trial. Benson vs. Atwood, 13 Md., 57; 2 Md. Digest, 23, No. 131.

ALVEY J., delivered the opinion of the Court.

The question presented in this case, arises under the 17th section of the Statute of 29 Car. II, chap. 3, known as the Statute of Frauds, and is as to what will amount to a sufficient acceptance and receipt of goods sold, in order to render the contract binding, where there is nothing given in earnest, or in part payment of the price, and there has been no note or memorandum in writing of the bargain made and signed as the Statute requires.

The bargain in question, was in reference to 3,148 lbs. of butter grease, alleged to have been sold and delivered to the appellants by the appellee, on the 24th of May, 1872.

The butter grease was, at the time of the bargain, in the cellar of the appellee in packages, and was seen by the agent of the appellants, and both the appellants and their agent could have examined the same before its removal, but did not do so except that the agent removed the loose heading of some of the packages, and inspected the top of those packages, but did not use any auger or trier, or in any manner probe into the packages to ascertain the condition of the grease. On the same day of the sale, the appellants, by written order, directed the appellee to deliver the grease to a drayman, by whom it was taken to the store of the appellants and there received. The appellants, upon further inspection, objected to...