Highley v. Phillips, 11.

• Decision Date: 27 April 1939
• Docket Number: No. 11.,11.
• Citation: 5 A.2d 824
• Parties: HIGHLEY v. PHILLIPS et al.
• Court: Maryland Court of Appeals

5 A.2d 824

HIGHLEY

v. PHILLIPS et al.

No. 11.

Court of Appeals of Maryland.

April 27, 1939.

Appeal from Circuit Court, Somerset County; Benjamin A. Johnson, Judge.

Assumpsit by A. Bowdle Highley against Pratt D. Phillips and another, trading as Phillips Brothers, to recover the price of sand alleged to have been sold by plaintiff to defendants. From a judgment for defendants, plaintiff appeals.

Affirmed.

Argued before BOND, C. J., and OFFUTT, PARKE, SLOAN, MITCHELL, and DELAPLAINE, JJ.

V. Calvin Trice, of Cambridge, for appellant.

L. Claude Bailey, of Salisbury (Miles, Bailey & Williams, of Salisbury, and L. Creston Beauchamp, of Princess Anne, on the brief), for appellees.

MITCHELL, Judge.

On May 16, 1935, the appellant entered into a written agreement with the appellees as follows:

"This agreement made this 16th day of May, A. D. 1935, by and between Pratt D. Phillips and H. Lay Phillips, trading as Phillips Brothers hereinafter called the party of the first part and A. Bowdle Highley, hereinafter called the party of the second part.

"Witnesseth; That the party of the first part and the party of the second part for the following considerations hereinafter named agree as follows:

"Whereas, the party of the first part is desirous of purchasing dirt from the party of the second part, and

"Whereas, A. Bowdle Highley is the owner of a certain tract of land in Trappe District, Talbot County, Maryland, bounded on the south by the county road leading from Trappe to Cambridge Ferry Farm and on the east and north by the land of D. C. Kirby being a triangular tract of land and a part of the Porpoise Creek Farm.

"The party of the first part agrees to purchase and the party of the second part agrees to sell all the dirt within the limits of the described tract of land without restriction.

"And the party of the first part has paid to the party of the second part the sum of Five Hundred ($500.00) Dollars in full and final settlement for said dirt and the receipt for the same is hereby acknowledged.

"It is mutually agreed and understood by the parties hereto that the party of the first part shall have the right—ingress and egress to and from said land with any equipment which may be necessary to move the dirt.

"It is further mutually agreed and understood by the parties hereto that the Contract with all its agreements, covenants, conditions and rights shall cease on January 1, 1937.

"Witness our hands and seals this 16th day of May, A. D. 1935.

"Test: A. Bowdle Highley,

"Phillips Bros.,

"By H. Lay Phillips."

The record does not disclose the character of the top or surface soil of the land described in the agreement at the time the same was executed, nor does it disclose the depth to which the same was excavated and removed, before a stratum of sub-soil, commonly known as sand, was reached.

When that discovery was made, the appellant, contending that the term "dirt", as used in the above agreement, did not embrace the type of soil commonly known as sand, brought the suit against the appellees, from which this appeal arises.

As finally amended, the declaration is based upon a single count in assumpsit, namely; for goods bargained and sold by the plaintiff to the defendants; the same being supplemented by a bill of particulars, which, in substance, sets forth that between the 20th day of May, 1935, and the date of the institution of the suit, the plaintiff sold the defendants approximately 10,000 tons of sand at the price of twenty-five cents per ton; and that said sand was accepted by the defendants and used by them in the construction of a section of Maryland State road; and that although the defendants had used said sand, as indicated, and had been paid for the same by the State Road authorities, the said defendants refused to pay the plaintiff for the sand, wherefore the suit was instituted. The general issue picas of never promised and never indebted as alleged were filed to the above declaration, and issue accordingly joined. It may be added that the suit was originally brought in the Circuit Court for Wicomico County, and by successive removals, finally sent to the Circuit Court for Somerset County, for trial.

At the trial below, seven exceptions were reserved by the appellant upon the Court's rulings on evidence, and one to its ruling in granting a prayer for a directed verdict, offered at the close of the plaintiff's case.

It being our conclusion that the latter ruling was without error, it will, therefore, be now considered.

The appellant testified that in the year 1935, the appellees constructed a section of Maryland State road between the village of Trappe and the northern end of a bridge over the Great Choptank River, in Talbot County, and that they secured all sand used in the construction of said road from a part of a farm known as "Porpoise Creek" which the witness owned.

Carefully avoiding in his testimony in chief, any statement tending to show that the sand in question was removed from that part of the above farm described in the contract, and any reference to the said contract; the witness further testified that the fair market value of sand, such as the appellees removed from his land, was twenty-five cents per ton; that the appellees had not paid him for the sand and that it was used for "concrete mix," in the construction of a concrete road between the two points above mentioned.

On cross examination, and over objection of his counsel, the witness was shown the aforegoing agreement, and admitted his signature to the same. The description of the particular land mentioned in the agreement was then read to him, and he was asked: Whether the sand which he had testified was removed from his premises by the appellees, was excavated and removed from the particular piece or parcel of land mentioned and described in the agreement? His reply to that inquiry was in the affirmative, and his further testimony tended to show, definitely, that no form of earth of any kind was removed from land belonging to him, by the appellees, other than the land described in the agreement; nor was such earth removed therefrom either prior to May 16, 1935 or subsequent to January 1, 1937, in accordance with the terms of the agreement.

H. Lay Phillips, one of the appellees, and the only other witness called by the appellant, testified that his firm constructed the section of State Road above mentioned; that it was a concrete road; that in width it was either 16 or 20 feet; that in length it was 4.54 miles; that the thickness of the concrete was 7 inches in the center and 9 inches on the shoulders, and that all sand used for concrete purposes in the construction of the road, was obtained from the land described in the agreement with the appellant.

As has been indicated, the primary and controlling question raised by this appeal involves the propriety of the ruling of the trial court, on the demurrer prayer offered at the close of the plaintiff's case, and in that connection, because of the nature of the prayer, any conflict in the evidence should be resolved in favor of the appellant, and the truth of all evidence, and such inferences as may naturally and legitimately be deduced therefrom, tending to support the appellant's right of recovery should, of course, be assumed. Clough & Molloy v. Shilling, 149 Md. 189, 131 A. 343; Lashley v. Dawson, 162 Md. 549, 160 A. 738; Armiger v. Baltimore Transit Co., 173 Md. 416, 196 A. Ill. However, there is no conflict in the evidence in the instant case. The appellant admits his execution of the aforegoing agreement with the appellees, and, regardless of whatever other character of soil they may have removed from the described land, the appellees admit that they did excavate and remove from the land described in the agreement, earth possessing characteristics of what is commonly known as sand; that it was of sufficient quality for the purposes of the manufacture of concrete, and it is conceded that from the described area and within the period prescribed by the agreement, a sufficient quantity of sand was removed by the appellees, for the construction of the above described section of State road.

In the last analysis, therefore, the sole question before us on this appeal, resolves itself into the construction of the word "dirt" as the same is used in the aforegoing agreement. Stated, differently, if it be determined that the term "dirt" is synonymous with the term "sand", the conclusion is inevitable, that the appellees were within their rights when they excavated and removed the earth or material indicated, under the conceded facts in the case. Furthermore, it would seem that this observation is strengthened when it is noted that by the terms of the contract, the appellant sold and the appellees purchased; "all the dirt within the...