Kahn v. Carl Schoen Silk Corp.

• Court: Maryland Supreme Court
• Writing for the Court: DIGGES, J.
• Citation: Kahn v. Carl Schoen Silk Corp., 147 Md. 516, 128 A. 359 (Md. 1925)
• Decision Date: 28 February 1925
• Docket Number: 59.
• Parties: KAHN ET AL. v. CARL SCHOEN SILK CORPORATION.

128 A. 359

147 Md. 516

KAHN ET AL. v. CARL SCHOEN SILK CORPORATION.

No. 59.

Court of Appeals of Maryland

February 28, 1925

Appeal from Superior Court of Baltimore City; H. Arthur Stump Judge.

"To be officially reported."

Action by the Carl Schoen Silk Corporation against Louis Kahn and Joseph Silverman, trading as the Resisto Manufacturing Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and WALSH, JJ.

Jacob S. New and Julius H. Wyman, both of Baltimore, for appellants.

Malcolm H. Lauchheimer and Michael Miller, both of Baltimore, for appellee.

DIGGES J.

This appeal is from a judgment obtained in the superior court of Baltimore city by the appellee (plaintiff below) against the appellant (defendant below) for the sum of $1,701.15. The declaration is in assumpsit and sought to recover the difference between the contract price of merchandise sold by the appellee to the appellant and the resale price of the same merchandise when sold after the appellant had refused to accept delivery. The record contains twenty exceptions nineteen to the rulings on evidence, and the twentieth to the ruling on the prayers. At the close of the testimony in the case there were seven prayers offered by the plaintiff and two by the defendant. The court rejected all of the offered prayers with the exception of the plaintiff's fourth prayer, which was granted after modification by the court. One of the prayers offered by the defendant, designated in the record as defendant's third prayer, is a general demurrer to the evidence, asking the court to instruct the jury that there is no evidence in the case legally sufficient to entitle the plaintiff to recover and their verdict must be for the defendant. The other prayer offered by the defendant is as follows:

"The defendant prays the court to instruct the jury that there has been offered no evidence in this case legally sufficient to entitle the plaintiff to recover under the pleadings in this case, and therefore their verdict should be for the defendant."

This court has been called upon in many recent cases to pass upon prayers of similar form to the defendant's fourth prayer, and the result of our decisions in those cases is that where the prayer is intended as a variance prayer, it is properly rejected because it does not comply with the provisions of the Act of 1914, chapter 110, now codified as section 9A of article 5 of the Code of Public General Laws. Decisions to this effect being found in a number of cases beginning with Western Union Telegraph Co. v. Bloede, 127 Md. 344, 96 A. 685, down to and including Caltrider v. Weant, 128 A. 72, being No. 44 of the present term of this court, in which last case the preceding cases deciding this question are collected and cited. It is evident in the present case that this fourth prayer was intended to be a variance prayer, for the reason that the defendant's third prayer is a general demurrer prayer and the defendant accomplishes by that prayer everything which he could accomplish by his fourth prayer, unless it was intended as a variance prayer, and as stated, if it was so intended, it was properly rejected. What was said in this respect by the court speaking through Judge Offutt, in the case of B. & O. Railroad v. Walsh, 142 Md. 230, 120 A. 715, is directly applicable to the present case. The plaintiff's fourth prayer, which was granted as modified by the court, is an instruction as to the measure of damages. The exception taken to the ruling on the prayers, therefore, presents two questions for our determination: First, was there any legally sufficient evidence in the whole case entitling the plaintiff to recover; and, second, if the plaintiff is entitled to recover, does the plaintiff's fourth prayer, as modified by the court, state the correct rule as to the measure of damages?

The denial of the plaintiff's right to recover is based upon the theory that section 25 of article 83 of the Code of Public General Laws, which is a provision contained in the Uniform Sales Act and which is substantially a re-enactment of the provisions of the statute of frauds relating to the sale of personal property of the value of $50 and over, prevents a recovery in this case, in that the provisions of the statute have not been complied with. The provisions of section 25 of article 83 are as follows:

"A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upward shall not be enforceable by action, unless the buyer shall accept part of the goods or choses in action so contracted to be sold, or sold and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. (2) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply."

The answer to this contention, by the appellee, is that the goods in question having been manufactured by the appellee (the seller thereof) especially for the appellant (the buyer thereof), and are not suitable for sale to others in the ordinary course of the appellee's business, the provisions of the statute quoted do not apply; and, second, that if the statute does apply, its requirements have been met. There is no question in this case that nothing was given in earnest to bind the contract, and that the delivery of the merchandise was not accepted by the buyer; but it is contended by the appellee that there has been such note or memorandum in writing of the contract of sale, signed by the party to be charged, as constitutes a compliance with the statutory requirement. In order to determine these questions, we must examine the evidence as disclosed by the record.

The appellee is a manufacturer of silk dress goods for ladies' wear, silk shadings, and men's neckwear silk, with factories located in Pennsylvania, New Jersey, and Rhode Island and sales rooms at 260 Fourth avenue, New York City. The appellant is a firm located in Baltimore city, Md., engaged in the manufacture and sale of silk neckwear. In the latter part of February or early in March, 1920, Jack Gold, an employee and salesman of the appellee, called at the appellant's place of business in Baltimore and exhibited samples or "swatches" of silk, with the purpose of selling to the appellant silk from which the appellant would manufacture ties for sale to its trade, and that the appellant might select the various patterns, designating the same and the quantity of each pattern so selected. As a result of the conversation between the salesman and the appellant and the conclusion then reached by them, an order was made out and reduced to writing by the salesman, which contained the name and address of the appellee as being the seller, the date March 11, 1920, the name and address of the appellant, "terms, as before," order No. 6175, "delivery, goods f. o. b. New York, May, June, July 20," "Credit and delivery of goods subject to approval of Peierls, Buhler & Co., to whom all bills are payable," and then followed 22 sets of numbers representing the design or pattern of silk ordered, with the number of yards set opposite each pattern and the price per yard opposite the number of yards. The salesman, Gold, then took this memorandum and turned it in to the general manager of the appellee in regular course. The appellee, by its general manager, examined the order, and after determining that the appellee could make delivery of the merchandise mentioned in the order at the time specified therein, mailed a copy thereof, initialed by him, to the appellant, which copy was produced at the trial by the defendants and forms a part of the record. Subsequently the following correspondence took place between the appellee and appellant:

"April 30, 1920.

The Resisto Mfg. Co., 37 S. Hanover St., Baltimore Md.--Gentlemen: It being our desire to assist our customers as much as possible, we would suggest that you accept samples on the goods you have coming from us for fall, so that you may be able to get out your salesmen's lines on time, instead of waiting for the goods to be delivered. These samples could either be additional or deducted from your order, whichever you may see fit to do. We would prefer to deduct the yardage from the goods we have to deliver.

A few of our accounts have suggested accepting one five-yard sample of each range, which would be sufficient for them to show to their trade.

Kindly let us know by return mail what you think of our suggestion, and also what samples you would want in case you would need any samples for your salesmen's lines.

Very truly yours,

WS:O Carl Schoen Silk Corporation.

May 4th, 1920.

Carl Schoen Silk Corp., Fourth Ave. at 21st. St., New York, N. Y.--Dear Sir: Attention: Mr. Schwab. Yours of the 30th ult., regarding sample length; we were delayed in answering same sooner, and it was under consideration until today. We appreciate very much your good faith regarding sample lengths, but we wish to state, however, that to our great sorrow, that according to reports that we get from our salesmen on the road, that our trade is not

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