Maryland Fertilizing & Mfg. Co. v. Lorentz

• Court: Maryland Supreme Court
• Writing for the Court: BOWIE, J., delivered the opinion of the Court.
• Citation: Maryland Fertilizing & Mfg. Co. v. Lorentz, 44 Md. 218 (Md. 1876)
• Decision Date: 03 March 1876
• Parties: THE MARYLAND FERTILIZING AND MANUFACTURING COMPANY v. BERNHARD LORENTZ and others, trading as LORENTZ & RITTLER.

44 Md. 218

THE MARYLAND FERTILIZING AND MANUFACTURING COMPANY v. BERNHARD LORENTZ and others, trading as LORENTZ & RITTLER.

Court of Appeals of Maryland

March 3, 1876

APPEAL from the Superior Court of Baltimore City.

The appellees sued the appellant, a corporation, for the breach of a contract the nature of which is stated in the opinion of the Court. A failure having occurred in the execution of the contract on the part of the plaintiffs, the agent of the defendant wrote them the following letter:

Baltimore Sept. 4th, 1873.

Mess. Lorentz & Rittler, Baltimore,

Gents:--We will have to insist upon your furnishing us with acid according to your contract with our President, Mr. Sangston otherwise we will be compelled to procure it from some other source, and charge you with any additional expense that may be added by so doing. You will please commence delivery immediately.

Yours truly,

J EDWIN MYERS,

Genl. Agt.

Subsequent deliveries of the acid to the defendant were made by the plaintiffs, and evidence at the trial was given by the plaintiffs tending to show that such subsequent deliveries amounted to a waiver by the defendant of the partial breach of the contract by them, and evidence was offered by the defendant tending to show that such deliveries were accepted not under the contract, but as independent original transactions. Subsequent to such deliveries the president of the defendant wrote the plaintiffs the following letter:

MARYLAND FERTILIZING AND MANUFACTURING CO.

OFFICE NO. 4 SOUTH HOLLIDAY STREET,

Baltimore Dec. 4, 1873.

Mess. Lorentz & Rittler,

Gents:--It is proper that I should inform you that I should decline receiving any acid on the contract made with you some months since. Your failures to make the deliveries as contracted partly, if not chiefly, arising from your making a subsequent contract, to which you gave precedence, involving us in a loss of several thousand dollars, have, in my judgment, relieved us from any responsibility legally or equitably to continue receiving from you.

Very truly, yours,

LAWRENCE SANGSTON.

The case is further stated in the opinion of the Court.

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

1. If the jury believe from the evidence that the plaintiffs wrote to the defendant the letter dated May 27th, 1873, and the defendant in reply thereto, wrote to the plaintiffs the letter dated May 28th, 1873, which have been offered in evidence, and that the defendant received from the plaintiffs, as it wanted, under the contract contained in said letters, 244 carboys of oil of vitriol in October, and 676 thereof in November, 1873, and settled therefor, as shown by the receipts dated respectively, October 30, and November 30, 1873, and that the defendant stopped the plaintiffs from delivering any more in said two last mentioned months, and did not order any more, or indicate to the plaintiffs that it wanted any more in either of said months, or in December, 1873, or in January or February, 1874, but sent to the plaintiffs the letter dated December 4th, 1873; and shall further believe that the plaintiffs were ready and willing, and offered to deliver to the defendant 2000 carboys per month, as wanted, at the rate of from 80 to 90 carboys per day of such oil of vitriol as is described in said letter of May 27th, during said months of October, November, December, January and February, but that the defendant refused to receive and pay for any more than that received as aforesaid, then the defendant is liable to the plaintiffs in this action for its refusal to receive and pay for 9080 additional carboys of said oil of vitriol during said last mentioned months.

2. If the jury find for the plaintiffs under the first prayer, and further find that when said letters of May 27th and 28th were written, the plaintiffs were, or were known by the defendant to be engaged in the business of manufacturing oil of vitriol, and that it was the expectation of the plaintiffs and defendant that the plaintiffs would, themselves, manufacture the oil of vitriol called for by said letters, and further believe that the oil of vitriol offered by them and declined by the defendant, as assumed in the first prayer, was of their own manufacture, then the measure of damages to which the plaintiffs are entitled for said 9080 carboys of oil of vitriol, is the difference between the cost to the plaintiffs of manufacturing the same, and the contract price of $1.40 per hundred pounds thereof, unless they believe that after they knew that the defendant did not intend to take any pay for said oil of vitriol, the plaintiffs could have sold the same at a price which would make their damages less than under the application of this rule; and if they so believe, the measure of damages is the difference between the contract price for said oil of vitriol, and that for which it could have been sold, when the defendant refused to take and pay for the same.

3. That the letter from J. Edwin Myers, dated September 4th, 1873, and the ratification thereof by the president of the defendant, and the assent thereto by the plaintiffs; if the jury shall find such assent, made it the duty of the defendant to supply itself, as it wanted, and with so much as needed of the 1360 carboys of said oil of vitriol, which the plaintiffs failed to deliver in September, 1873, or to inform them of its inability so to do, and the defendant is entitled to a deduction for such damages as the jury may allow the plaintiffs under the preceding prayers, of only the difference, if any, between the contract price of $1.40 per hundred pounds, and the actual cost to the defendant of so much of said oil of vitriol, as it procured to make up what it needed of the 1360 carboys not delivered by the plaintiffs in September.

And the defendant offered the four following prayers:

1. That if the jury believe from the evidence in this cause, that the plaintiffs after demand had been made on them by the defendant, or its duly constituted agent, failed and refused to deliver during the month of September, 1873, to the defendant, the 2000 carboys of oil of vitriol according to the terms and at the times specified, as contained in the letter of the plaintiffs to the President of the defendant's company, (which is the contract upon which this suit has been instituted,) and which letter bears date 27th May, 1873, then the plaintiffs cannot recover in this action, and the verdict of the jury must be for the defendant, unless the jury shall find that the plaintiffs' failure so to deliver the 2000 carboys called for by the contract, was occasioned by the act of the defendant.

2. That if the jury find from the evidence of the defendant's witness, Sangston, that a conversation was had between him and one of the plaintiffs in the early part of the month of October, 1873, and that in said conversation the said defendant's witness notified the plaintiffs, that he, the said Sangston, acting for and in behalf of the said defendant, annulled the contract sued on in this case, and settled with said plaintiffs for the carboys which had been delivered in the month of September, 1873, on the express condition and stipulation that the contract of May 27th was annulled, and that the plaintiffs received the note of defendant in settlement with this understanding, then these facts together with the subsequent conduct of the plaintiffs as testified to by the witnesses for the defendant, are evidence from which the jury may find that the contract sued on in this case was annulled and rescinded by mutual consent; and if they so believe, their verdict must be for the defendant.

3. That if the jury shall find from the evidence in this cause, that the plaintiffs, without any default on the part of the defendant, committed a breach of the contract in September, and that the business of the defendant was impaired thereby, and injured in consequence of the plaintiffs' failure to, if the jury shall find they did so fail, execute their contract with the defendant, then the jury may set-off as a bar to the plaintiffs' claim in this action, the damages that they may find the defendant suffered by reason of the plaintiffs' breach of their contract with the defendant, and may consider the fact of the absolute inability of the defendant to purchase or procure acid in the month of September, as an element of damages suffered by the defendant, and for which the jury may recoup and set-off.

4. That the measure of damages, if the jury shall find the plaintiffs are entitled to recover at all, is the difference between the contract price and the market price of the oil of vitriol during the months in which the plaintiffs allege the defendant refused to receive and accept the oil of vitriol under the contract of 27th May, 1873.

The plaintiffs excepted specially to the defendant's second prayer, because there was no evidence legally sufficient to sustain the hypothesis on which the same was founded.

The plaintiffs objected to the third prayer of the defendant, because there was no evidence sufficient in law to go the jury tending to establish the hypothesis of facts assumed in the said prayer.

The Court granted the plaintiffs' prayers, and refused those of the defendant.

The defendant excepted. The jury rendered a verdict for the plaintiffs, and judgment was entered accordingly. The defendant appealed.

The cause was argued before STEWART, BOWIE, BRENT and ROBINSON, J.

H. Clay Dallam and I. Nevett Steele, for the appellant.

If there have been an entire executory contract and the plaintiffs have performed a part of it, and then wilfully refuse, without legal excuse, and against the defendant's consent, to perform the rest, they can recover nothing...