Jackson v. Linthicum

• Decision Date: 10 February 1949
• Docket Number: 76.
• Citation: 64 A.2d 133,192 Md. 272
• Parties: JACKSON v. LINTHICUM.
• Court: Maryland Court of Appeals

64 A.2d 133

192 Md. 272

JACKSON v. LINTHICUM.

No. 76.

Court of Appeals of Maryland

February 10, 1949

Appeal from Circuit Court, Dorchester County; W. Laird Henry, Chief Judge.

Suit by Josiah F. Linthicum against Creston E. Jackson upon the common counts and a special count for care and maintenance of a dairy herd owned by defendant. From the judgment, defendant appeals.

Judgment affirmed.

William D. Gould, of Cambridge (Gould & Edmondson of Cambridge, on the brief), for appellant.

Charles H. Gibson, of Cambridge, for appellee.

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS, GRASON HENDERSON and MARKELL, JJ.

HENDERSON Judge.

Josiah F. Linthicum brought suit in the Circuit Court for Dorchester County upon the common counts and a special count for the care and maintenance of a dairy herd owned by Creston E Jackson for the period from April 15, 1946 to January 25 1947. The case was heard by the Court without a jury, and resulted in a verdict and judgment for the appellee in the amount of $3128.33. Upon motion for a new trial, the plaintiff agreed to a reduction of $250, and upon the filing of a remittitur, judgment was entered for the sum of $2878.33. Appeal was entered from that judgment.

Linthicum is 55 years of age and the owner of two adjoining farms in Dorchester County, where for some years past he carried on the business of dairy farming. Each farm has suitable barns, milk houses and farm equipment. In January, 1946, he decided to go out of the business and sold his herd, consisting of high-grade Holsteins and Guernseys, to Jackson, who removed it to Talbot County. On April 15, 1946, Jackson brought the herd back. He urged Linthicum to buy it back, but the latter refused. He then asked Linthicum to take it on a share basis, but the latter refused. He then said he had no place to keep the cattle, and asked Linthicum for the use of his barns. Linthicum agreed to this, but nothing was said about compensation, or how long the cattle were to remain. For about 14 weeks Linthicum and his son milked the cows night and morning. He arranged for the sale and delivery of the milk, and generally supervised the operation. An employee of Jackson occupied a tenant house on one of the farms. Jackson authorized Linthicum to buy feed and hay. In August, Jackson paid some money on account, but kept insisting that Linthicum handle the matter on shares. Linthicum always refused, but was unable to get Jackson to agree as to terms, or to take the cattle away until the matter was brought to a head by the rendition of a bill. During the period of some 41 weeks that the cattle were on the farms, Linthicum turned over to Jackson, or deposited to his account, milk checks and other receipts totaling $13,543.13. Jackson testified that the expenses during that period exceeded the receipts.

At the trial below the chief contention of the appellant was that Linthicum had tacitly agreed to keep the cattle for a share of the profits. The trial court found that there was never any agreement between the parties, and that the plaintiff's action was sustainable under the theory of quantum meruit. See Restatement, Restitution, (Contracts) § 129(c); Stockett v. Watkins Adm'rs, 2 Gill. & J. 326, 342, 20 Am. Dec. 438. This conclusion is not seriously challenged. The appellant contends, however, that certain items allowed by the court were excessive and against the weight of the evidence. Items for personal services, rent of the barns and tenant house, electricity, and damage to a Dodge truck, are not seriously questioned. The principal objection is as to the allowance of $700 for the pasturage of a red top clover field (35 acres at $20 per acre), and $500 for pasturage of a field of lespedeza, clover and timothy (100 acres at $5 per acre), as set out in the opinion of the court.

As none of the testimony is set out in the appendices, we might properly decline to consider the question at all. Platt v. Wilson, Md., 62 A.2d 191. But from the substance of the testimony stated in the briefs it appears that the plaintiff based his valuation ($20 an acre for the clover) in part upon the fact that he had bought standing clover hay from a Mr. Jones the previous year for $25 an acre, and that Jones had offered him $20 an acre for the field in question in 1946. He put a value of $10 an acre on the mixed field, but the court only allowed $5 an acre. Both estimates were corroborated by Mr. Jones. Both witnesses admitted in cross-examination that there would be some advantage to the...