Jenkins v. Spedden
| Citation | 111 A. 136,136 Md. 637 |
| Decision Date | 17 June 1920 |
| Docket Number | 35. |
| Parties | JENKINS et al. v. SPEDDEN et al. |
| Court | Court of Appeals of Maryland |
Appeal from Circuit Court, Dorchester County; Joseph L. Bailey and Robt. F. Duer, Judges.
Suit by T. Clifton Jenkins and another, trading as Thomas C. Jenkins against Edward P. Spedden and others, trading as the Spedden Packing Company. From a judgment for an alleged insufficient amount, plaintiffs appeal. Reversed, and new trial ordered.
Argued before BOYD, C.J., and BRISCOE, PATTISON, URNER, STOCKBRIDGE ADKINS, and OFFUTT, JJ.
Philip H. Close, of Bel Air, and F. Leonard Wailes, of Salisbury (Ellegood, Freeny & Wailes, of Salisbury, and W. Laird Henry of Cambridge, on the brief), for appellants.
Frederick H. Fletcher, of Cambridge (Fletcher & Jones and T. Sangston Insley, all of Cambridge, on the brief), for appellees.
The appellants sued the appellees for failure and refusal to perform a contract for the delivery of 1,000 cases, containing 2,000 dozen of No. 3 tomatoes of the 1917 packing, and recovered a judgment for $371, but, not being satisfied with the amount recovered, took this appeal. They had the right to do that, as decided in Baer v. Robbins, 117 Md. 213, 225, 83 A. 341, and other cases. General issue pleas were filed, upon which issue was joined, and afterwards an additional plea was filed, to which a demurrer was entered by the plaintiffs, but the demurrer was overruled.
The sale was made by the Easton Commission Company, brokers, and the contract was dated January 12, 1917. The price was $1.10 per dozen, delivery f. o. b. factory, and the tomatoes were to be shipped promptly as soon as packed. This provision was in the contract:
" Delivery Guaranty.-In case of partial failure of the crop, or prevention of full delivery by other unavoidable causes (except destruction of factory or warehouse), seller to be held responsible only for delivery of 75 per cent. of sale made, and for any portion of remaining 25 per cent. not delivered, seller to pay not exceeding 10 per cent. of contract price."
There are 10 bills of exception presenting rulings on the admissibility of evidence, and one on the prayers. The plaintiffs offered eight prayers, the first of which was granted as amended, the third, fourth, and sixth were granted as offered, and the other four were rejected. The defendants offered five prayers, the first and fifth of which were granted, and the other three rejected. The plaintiffs excepted to the action of the court in amending their first prayer, in rejecting their second, fifth, seventh, and eighth, and in granting the defendants' fifth prayer.
No objection was raised by either party by reason of it, but there is no replication to or joinder of issue on the additional plea in the record. At the hearing we called attention to that condition of the pleadings, but no effort was made to correct it, and we understood from the attorneys that there was no such replication or joinder of issue, although issues were joined on the general issue pleas. The rule is thus stated in Poe on Pl. and Pr. § 670:
There have been a number of decisions by us and our predecessors in reference to such omissions and defects, and the tendency, particularly in recent years, has been to deal as liberally as possible with them, so as to avoid holding them to cause mistrials. In this case both parties apparently proceeded on the assumption that all that was necessary had been done, and intended to waive such errors. Prayers were evidently offered on that assumption, and there is a note in the record, which seems to have been intended as a stipulation, as follows:
" Note.-Throughout the trial of the case no question was raised as to the delivery of the proportion of the goods packed of canned tomatoes for the year 1917 required by the government, and plaintiffs conceded that if the defendants failed to pack sufficient tomatoes in that year to fill their future contracts after giving the government its requirement of their pack, which was 18 per cent. thereof, then no claim would be made by the plaintiffs for the short delivery up to the amount so required by the government, and that the plaintiffs would not require strict proof of any requisition therefor, reserving, of course, all other rights of the plaintiffs under its contract."
But, in addition to those matters, the omission to file the replication or to join issue on that plea was not specifically raised below. It is said in 18 Enc. of Pl. and Pr. 651, that "the failure to file a replication is not a ground of error, when the objection is raised for the first time in an appellate court." See, also, 21 R. C. L. 555, 556, par. 115, and section 9 of article 5 of the Code. If formerly it could have been raised by reference in the prayers to the pleadings, it could not now, unless specifically referred to. Section 9a of article 5, vol. 3, of Code. The only doubt we have had was whether it was necessarily raised by an objection to the admissibility of evidence, in a way to bring it before us, as, when there is such an objection offered generally, the attention of the court is called to the pleadings, and the rulings can be reviewed. B. & O. R. R. Co. v. State, use Woodward, 41 Md. 268, 297.
But, as the attorneys on both sides seem to have intended to waive the errors and irregularities, we will dispose of the case as if they had not been observed by us. As we have concluded that the judgment must be reversed, for reasons to be given, and as it would have to be reversed because some of the evidence was inadmissible, if the errors in pleading were not waived, no harm can be done by our action in reference to those pleadings, and before a new trial is had the error and omission can be corrected.
While that plea is before us, we will add that in our opinion there was no reversible error in overruling the demurrer, as we do not regard it as a plea of tender, but simply one setting up a reason for not furnishing the tomatoes. Moreover, as the jury rendered a verdict for the plaintiffs, and the plea undertook to answer the whole claim, it appears that they were not injured.
We do not find any reversible error in the ruling in the first exception. The witness Moffat, who was in charge of the plaintiffs' canned goods department, was asked at what price he bought tomatoes to take the place of those the defendants had failed to ship or deliver. The defendants objected on the ground that the measure of damages was not the difference between the contract price and the price paid by the plaintiffs for other tomatoes, but the difference between the contract price and the market price ruling at the time and place where the delivery should have been made. The attorneys for the plaintiffs then said that they recognized that measure of damages, and they were willing for that rule to be applied. In view of that statement, we do not understand upon what ground the plaintiffs excepted; but at any rate the witness did answer the question, and testified as to the price they had paid.
Howard P. Spedden, one of the appellees, was asked, in the second exception, what was the character and extent of the tomato crop in the neighborhood of his packing house in the year 1917, and in the third exception he answered:
"It was a partial failure of the crop in the neighborhood of James post office, or his packing house; that there was only about 60 per cent. of the usual crop produced."
Inasmuch as the part of the contract above quoted expressly makes provision for a partial failure of crop, etc., there can be no question about those rulings being correct. Whether or not there was in fact such failure was for the jury to determine. Nor was there any error in the fourth and fifth exceptions and they require no discussion, especially in view of what we have quoted above as to the plaintiffs' concession. The sixth was likewise free from objection. The seventh, eighth, ninth, and tenth presented evidence as to a...
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