Jones v. Mechanics' Bank

• Decision Date: 26 June 1868
• Citation: 29 Md. 287
• Parties: LEWIS JONES and LEWIS JONES, JR., trading as LEWIS JONES & CO. v. THE MECHANICS' BANK OF BALTIMORE, Garnishee of G. A. MUNDORFF.
• Court: Maryland Court of Appeals

29 Md. 287

LEWIS JONES and LEWIS JONES, JR., trading as LEWIS JONES & CO. v. THE MECHANICS' BANK OF BALTIMORE, Garnishee of G. A. MUNDORFF.

Court of Appeals of Maryland

June 26, 1868

APPEAL from the Superior Court of Baltimore City.

This was an attachment on warrant, issued out of the Superior Court of Baltimore city, on the 17th day of April, 1865, at the instance of the appellants, against the lands, tenements goods, chattels and credits of G. A. Mundorff, a non-resident of the State of Maryland, to recover the sum of $1,507.50 due and owing from the said Mundorff to the appellants, for one hundred and fifty barrels of apples, at $10 per barrel and for hauling the same at and for the sum of $7.50. The writ was laid in the hands of the appellee, as garnishee of said Mundorff, on the day that it was issued.

The appellee filed a plea, on behalf of the defendant, Mundorff of "not indebted," and a plea, on its own behalf, of " nulla bona. " The appellee subsequently filed the following answer to interrogatories propounded to it by the appellants, viz: "It is admitted that the garnishee had, at the time of laying said attachment in its hands, and now has, sufficient funds to cover plaintiffs' claim, provided it is established."

At the trial of this cause in the Superior Court, the sole point in controversy was the indebtedness of the defendant, Mundorff, to the appellants. The facts of the case are sufficiently stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, MILLER and ALVEY, J.

Levin Gale and N.M. Pusey, for the appellants:

Even if the effect of the agreement between the appellants and the defendant was a contract of sale, the facts of the case, as shown in the record, establish that there was such a delivery by the appellants, and acceptance by the defendant, of the apples, as to take the case out of the 17th section of the Statute of Frauds.

The property in and title to the apples, vested immediately, on their delivery on board the schooner in charge of Mr. Kilburn, in the defendant, and he alone could maintain an action against the carrier for their loss. Dawes vs. Peck, 8 Term, 330; Dutton vs. Solomonson, 3 Bos. & Pull., 584; Ludlow vs. Brown & Eddy, 1 Johns., 15; The People vs. Hayne, 14 Wendell, 562; Madison, &c., R. R. vs. Whitesel, 11 Ind., 55; Story on Sales, sec. 390.

No place of delivery being mentioned or agreed upon, other than the schooner of Mr. Kilburn, the appellants were bound to deliver according to the agreement. Story on Sales, sec. 305.

The apples were liable to seizure, at the suit of the creditors of the defendant, immediately after their delivery at or on board the schooner. Hall & Loney vs. Richardson, 16 Md. Rep., 396.

An actual or manual delivery is not in all cases necessary to gratify the provisions of the 17th section of the Statute of Frauds. Atwell vs. Miller & Mayhew, 6 Md. Rep., 10.

A delivery to an agent or carrier designated by the vendee, is sufficient to gratify the requirements of the Statute of Frauds. Hunt vs. Bush, 96 Eng. Com. Law, 496; Anderson vs. Hodgson, 5 Price, 630; Spencer vs. Hale, 30 Vermont, 314; Snow vs. Warner, 10 Metcalf, 132, 138; Outwater vs. Dodge, 6 Wendell, 397.

The defendant should have given the appellants notice, within a reasonable time, of his refusal to accept the apples. Story on Sales, secs. 405, 408; 2 Selwyn's Nisi Prius, 865, margin.

There was no contract of sale in this case between the appellants and the defendant, because, at the time of the interview, on or about the 10th of March, 1865, the appellants had no title to the apples, nor did they know that they would be able to procure them. Story on Sales, sec. 1, 186.

The contract spoken of by the witnesses was not to sell and deliver, but to procure and deliver the apples, and was not within the 17th section of the Statute of Frauds. Brown on Statute of Frauds, sec. 310; Cobbold vs. Caston, 8 Moore's Rep., 456; Bird vs. Muhlinbrink, 1 Richardson, ( S. C.,) 199; Story on Sales, sec. 262.

Stewart Brown and George Wm. Brown, for the appellee:

Under section 17, of the Statute of Frauds, in order to make a contract good, without a memorandum thereof in writing, two things, distinct in their nature, must be completed:

1st. On the part of the vendor, a delivery complete, full and unequivocal as the case would admit of, made with the purpose and having the effect of putting the possession of the goods beyond his power and control; and,

2d. On the part of the vendee, a separate and distinct act, to wit, an acceptance and actual reception of the goods, equally complete and unequivocal. 3 Parsons on Contracts, 40, &c. Brown on Statute of Frauds, secs. 316, 317.

It was moreover incumbent on the plaintiffs affirmatively to establish, that both these requisitions of the statute had been complied with. This was not done. Because, all the evidence upon the subject, in the Record, only tended to maintain the first of these propositions, if indeed it accomplished so much. But in reference to the second proposition, there was no evidence whatever to go to the jury; because,

1st. Upon the hypothesis of the defendant's prayer, fully supported by the testimony, the jury were required to find that under the contract, the apples were to be transported to City Point for delivery to the defendant there. If that were the place of delivery, then they never came into the possession or control of the defendant, and all his acts and declarations there, not merely negative any inference of acceptance, but expressly establish, that on the contrary, he repudiated the contract and refused to accept.

2d. Nor could the evidence of any intermediate delivery of the goods on the schooner Mansion, although indicated by the defendant as a carrier, have any bearing on the question of acceptance; because no legitimate inference of any authority in the carrier, could be drawn from his designation or employment by defendant, beyond the authority derived from the nature of the service to be performed by him, viz: to receive the goods for the sole purpose of transportation. No express authority, in the carrier to receive and accept, in order to bind the bargain, was attempted to be shown.

The question as to what constitutes such acceptance as will satisfy the requirements of the Statute, has been much discussed both in England and this country, and with some difference of opinion, but the later English cases have laid down the rule or test upon the subject, viz: "That there can be no sufficient acceptance so long as the vendee retains the right of objecting to the quantity or quality of the goods." Hanson vs. Armitage, 5 Barn. & Ald., 557, decided in 1825.

The rule laid down in this case has been adopted and enforced in most of the later English cases, and also adopted in this country. Norman vs. Phillips, 14 M. & W., 277; Farina vs. Home, 16 M. & W., 119; Meredith vs. Meigh, 2 Ellis & B., 363; Hunt vs. Hecht, 8 Ech., 814; Hunt vs. Bush, 1 Ellis, B. & E., 494; Astey vs. Emery, 4 M. & S., 262; Simmonds vs. Humble, and others, 106 English Com. Law, 258; Shindler vs. Houston, 1 Comst., 261; Currie vs. Anderson, 2 Ellis & Ellis, 591; Browne on Frauds, ch. XV, sec. 327, 328; Story on Sales, sec. 276; Acebat vs. Levy, 10 Bing., 376; Nicholson vs. Bower, 1 Ellis & Ellis, 172.

The mere delivery to and acceptance by a carrier or wharfinger for the purpose of transportation or forwarding the goods, although such carrier or wharfinger is specially designated by the vendee, cannot operate as an acceptance within the meaning of the Statute. Frostbury Mining Co. vs. N.E. Glass Co., 9 Cushing, 115; Bushel vs. Wheeler, 15 Queen's Bench, 442; Coombs vs. Bristol R. R. Co., 3 Hur. & Nor., 510; Browne on Frauds, sec. 329; Cusack vs. Robinson, 101 E. C. L., 297, 305.

MILLER J., delivered the opinion of the Court.

The facts of this case, upon which are based the main propositions of law contained in the several prayers on either side, are these:

In the early part of March, 1865, Mundorff, who was then engaged at City Point, Virginia, in the business of furnishing supplies to sutlers in the army, verbally agreed with the plaintiffs, Lewis Jones & Co., merchants in Baltimore, to buy from them two hundred barrels of apples at $10 per barrel and directed them to send the apples to the schooner "Mansion," chartered by Mr. Kilbourn, then lying at a wharf in Baltimore, and on which he had shipped other merchandise, to be by that vessel forwarded to him at City Point. The plaintiffs did not have the apples at the time, but subsequently obtained one hundred and fifty barrels, which they delivered on board the schooner, taking from the mate a receipt stating that one hundred and fifty barrels of apples had been received from the plaintiffs, "on board the schooner Mansion, for Mr. Mundorff." The vessel sailed on the 17th, but did not arrive at City Point until the 29th of March, the usual time of such a voyage being three or four days. Upon their arrival the apples were found to be in a damaged condition, most of them rotten, and Mundorff refused to accept or receive them, except four barrels of Russets which were in good order; but Gilbert, who acted as supercargo and receiver of freight for the vessel, refused to let him have these four barrels, unless he would pay freight on the whole lot; this Mundorff declined to do, and then directed Gilbert to notify the plaintiffs of his refusal to accept; and Gilbert, accordingly, on the 31st of March, telegraphed to the plaintiffs that Mundorff would not take the apples, and asked what he should do with them: this telegram was duly received by the plaintiffs but not answered. Gilbert then selected out enough to make about twenty barrels and...