Lynn v. Baltimore & O.R. Co.

• Decision Date: 21 June 1883
• Citation: 60 Md. 404
• Parties: JOHN G. LYNN, JR. v. BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: Maryland Court of Appeals

60 Md. 404

JOHN G. LYNN, JR. v. BALTIMORE AND OHIO RAILROAD COMPANY.

Court of Appeals of Maryland

June 21, 1883

Appeal from the Circuit Court for Allegany County.

The case is stated in the opinion of the court.

Exception.--At the trial the plaintiff offered the three following prayers:

1. That if the jury find the contract offered in evidence was made by the parties to this cause, and that N. S. Hill appointed Mr Legge to inspect the ice offered by the plaintiff, and said Legge thereafter left Cumberland and appointed Mr. Wilson to inspect samples offered by the plaintiff in his absence and send the same to Mr. Hill in Baltimore--then, that the decision of Wilson and Hill, or either of them, is not binding on the plaintiff, unless they shall find that such authority was delegated by Legge to Wilson or Hill with plaintiff's consent, and if they find that the samples offered in the absence of Mr. Legge, were of the quality specified in the contract, and plaintiff was ready and willing to deliver the quantity and quality of ice in said contract specified, in the manner thereby required, and defendant refused to receive and pay for the same, then their verdict must be for the plaintiff.

2. That if the jury find the facts set forth in the first prayer their verdict must be for the plaintiff, and the measure of damages is the difference between the contract price and the sum which it would cost the plaintiff to deliver said ice as in said contract is specified, together with such sums as the plaintiff may have reasonably laid out and expended in part execution of his contract.

3. That if the jury find that the parties entered into the contract offered in evidence, and plaintiff was ready and willing and offered to deliver the quantity and quality of ice in said contract specified, in the manner therein provided for, and N. S. Hill appointed J. F. Legge to inspect the same, and said Legge inspected and condemned the same, but was grossly wrong in his judgment, and was an employee of the defendant and told the plaintiff, as a reason for not taking his ice that the defendant could get cheaper ice elsewhere, and concealed from the plaintiff that he was acting under the said appointment of said Hill, and told plaintiff that he was not so acting, then the decision of said Legge as to the quality of said ice is not binding on plaintiff, and their verdict must be for the plaintiff.

And the defendant offered the five following prayers:

1. That if the jury find that in pursuance of the contract in evidence the said N. S. Hill selected John F. Legge, an agent of the defendant, to inspect and approve the ice offered by the plaintiff, and that said Legge accepted the duty and undertook its performance, and that he (plaintiff) submitted specimens of ice from time to time to the inspection of Legge, then in order to recover under the pleadings in this case it is incumbent on the plaintiff to prove that the said Legge did approve of ice so submitted for his inspection and approval, unless the jury further find that Legge fraudulently, or in bad faith, rejected the ice offered by the plaintiff.

2. And on the subject of a fraudulent rejection, or bad faith, as mentioned in the aforegoing prayer:

(a) That the onus of establishing fraud is on the plaintiff, and the presumption is always against fraud.

(b.) That fraud is not to be assumed on doubtful evidence, but the facts constituting fraud, must be clearly and satisfactorily established.

3. That it is not enough to establish fraud, that the evidence tends to show, that Legge rejected ice, which, in the opinion of the jury, he ought to have approved of; but it is incumbent on the plaintiff to establish his charge of fraud, by clear and satisfactory evidence, that Legge disapproved of ice submitted to him, either by the procurement of, and in collusion with, the defendant, or from a design to injure, deceive or defraud the plaintiff.

4. That according to the terms of the contract between the plaintiff and defendant, read in evidence, it was the duty of the said N. S. Hill to have appointed some agent of the company (defendant), to inspect and approve of the ice to be furnished by the plaintiff; and if the jury find that John F. Legge was selected and appointed by N. S. Hill to perform that duty, and that Legge was an agent of the defendant, and that Legge accepted the appointment, and undertook the duty assigned him, and that the plaintiff accordingly, from time to time, submitted to Legge specimens of ice for his inspection and approval; and further find, that he did inspect the ice offered by the plaintiff, for the acceptance of the defendant; but that he did not approve of such ice, and rejected it; then, even though the jury may believe from the evidence that Legge unreasonably rejected the ice, the plaintiff cannot recover in this action unless the jury find that the action of Legge in rejecting the ice offered was fraudulent or done in bad faith.

5. But in order to find that Legge was guilty of fraud, or bad faith, in rejecting the ice as mentioned in the foregoing prayer, it is incumbent on the plaintiff to establish the charge of fraud, and by clear and satisfactory evidence; and it is not enough to establish the fraud charged, that the jury may believe, from the evidence, that Legge rejected ice which the jury may believe he ought to have accepted, or that he rejected ice which, in the opinion of the jury or others, corresponded in all particulars with that described in the agreement; but in order to maintain the charge of fraud under the pleadings and evidence in this case, the jury must find that the judgment and action of Legge was the result of fraud or bad faith, as described in preceding prayers.

The court (Alvey, C.J., and Motter, J.), rejected the prayers of the plaintiff, and granted those of the defendant, and gave the following instruction in lieu of the plaintiff's second prayer:

If the jury find for the plaintiff under the instructions given by the court, then the measure of damages will be the amount of expense or outlay by the defendant reasonably and fairly incurred by him in part execution of the contract, if the jury so find, not exceeding the contract price of the ice to be furnished, and any profit that he would have made or realized if the contract had been fully performed by him.

The plaintiff excepted, and the verdict and judgment being against him, he appealed.

The cause was orally argued before Miller, Yellott, Robinson and Irving, JJ., and upon re-argument on brief, on the appellee's third prayer, Stone, J., participated in the decision.

J. W. Thomas and William Walsh, for the appellant.

W. Irvine Cross, A. Hunter Boyd and John K. Cowen, for the appellee.

Miller J., delivered the opinion of the court.

This action was brought by the appellant against the appellee, to recover damages for breach of a written agreement by which the plaintiff engaged to furnish a certain quantity of ice to the defendant for the use of its road generally, and for its hotel in Cumberland. The contract is embodied in a letter from N. S. Hill, the general purchasing agent of the company, to the plaintiff, dated the 7th of December, 1880, which contains this provision: "The ice to be good, clear, solid stock, not less than six inches thick, clear of snow, and subject to the inspection and approval of an agent of the company selected by me." In pursuance of this contract, Hill appointed J. F. Legge, the station agent of the company in Cumberland, to inspect and approve the ice, and the plaintiff, at sundry times after the ice season commenced, sent specimens of the ice he proposed to furnish, to Legge, who rejected the same, and no ice was ever, in fact, delivered. In his amended declaration, the plaintiff, after setting out the contract avers that, relying upon the same, he made all necessary arrangements for full and complete performance thereof, in the way of leasing land to work upon, and purchasing tools, which involved the expenditure of a large sum of money, and that at the first favorable ice season, which was some time in December, and from time to time thereafter, he requested the defendant to allow him to proceed to furnish and deliver the ice as he had contracted to do, and submitted samples of the ice to be inspected by the agent appointed by Hill, but said agent fraudulently rejected the same; that he was willing and ready, and offered to perform his said contract in each and every particular, and was fully prepared and able so to do, but the defendant wholly neglected and refused to allow him to perform the same, or to accept the ice it had agreed to accept, and which the plaintiff had agreed and was willing and ready to deliver as he had contracted to do.

It appears that besides the general issue, the defendant filed a number of special pleas to the original declaration, and that to several of these demurrers were interposed, some of which were sustained, and that the pleas thus overruled were allowed to be amended, but it does not appear that any amended pleas were ever filed. It also appears that demurrers were sustained to several replications to the original pleas but as no amended pleas were filed, the rulings upon none of these demurrers are presented for review. In fact the record, upon this point, is very confused, and as counsel are unable or unwilling, to enter into an agreement setting forth what ought to be its true state, in this respect, we must take it as it stands, and, in the absence of the amended pleas, we assume (as counsel for the appellee have stated) that after the amended declaration was filed, charging that Legge fraudulently rejected the ice, there were no demurrers, and consequently no rulings upon them. The...