Maryland Lumber Co. v. White

Decision Date02 July 1954
Docket NumberNo. 142,142
Citation107 A.2d 73,205 Md. 180
PartiesMARYLAND LUMBER CO. v. WHITE et al.
CourtMaryland Court of Appeals

William Saxon, Baltimore, for appellant.

Lawrence I. Weisman, Baltimore (Nyburg, Goldman & Walter, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, and HENDERSON, JJ.

BRUNE, Chief Judge.

This case involves an original suit and a cross-claim, and there are appeals from the judgment below on each of them. The original suit was essentially one for conversion of a carload of lumber and plywood; the cross-claim is based upon alleged breaches of contracts for the sale of plywood and of a carload of doors and upon a claim for moneys due upon accounts stated.

The parties are Dan Schloss and Jerry Schloss, co-partners, trading as the Baltimore Lumber Company (hereinafter usually referred to as 'Baltimore'), H. A. White, trading as the H. A. White Lumber Company (hereinafter usually referred to as 'White'), Maryland Lumber Company, a corporation (hereinafter usually referred to as 'Maryland'), and (originally) The Pennsylvania Railroad (hereinafter usually referred to as the 'Railroad'). White is a wholesale lumber dealer with his principal place of business in Seattle, Washington. He ships lumber and plywood on a nation-wide basis. Maryland and Baltimore are lumber dealers in the City of Baltimore and are competitors whose rivalry seems to be beyond the ordinary. They are or have been customers of White. The Railroad was the delivering carrier of a carload of lumber and plywood shipped by White in or about October, 1950.

In the original suit Baltimore and White, as plaintiffs, (Baltimore bringing suit to its own use and as assignee of White, and White bringing suit to the use of Baltimore), sued the Railroad and Maryland on a declaration which (as amended) contained four counts in tort. The chief grounds of suit were conversion by Maryland to its own use of the carload in question and conversion by the Railroad through its having misdelivered the material to Maryland, though it was consigned to White. The plaintiffs delivered an order of satisfaction to the Railroad, which was filed in the trial court on the day when the case was first reached for trial, and the Railroad is not a party to the appeals herein. On the original suit the trial court entered judgment for the plaintiffs (who will be designated as appellees here, though they are also appellants on the cross-claim) in the amount of $8,880.79, from which Maryland appeals. (Maryland will be designated as appellant here, though it is, in part, an appellee on the cross-claim.)

The cross-claim was brought by Maryland against White. Claims aggregating $7,714.47 for alleged breaches of contract were disallowed by the trial court, and Maryland appeals from such disallowance. Judgment was, however, entered in favor of Maryland against White for $1,446.01. White does not here contest judgment for $415.69 of that amount made up of various small items, but appeals from the judgment on one item--growing out of the sale of certain doors--included therein, which amounts to $1,030.32.

Maryland claims that there is a net balance due it of nearly $5,000.

On the day when the case was first reached for trial and the order of satisfaction in favor of the Railroad was filed, the appellant sought and obtained a postponement. When it again came up some weeks later, the trial court, after hearing preliminary statements, passed an order, with the apparent consent of all parties, reciting that it appeared necessary to examine and determine the accounts between the parties and referring the case to Samuel J. Fisher, Esquire, as auditor and master 'to report the pleadings and the facts and his opinion thereon' with 'full power to hear all testimony in the within case * * *.'

The auditor and master conducted extensive hearings and filed a thorough and carefully considered report analyzing the evidence and stating his findings thereon and his recommendations. The trial court, after a hearing upon the exceptions to the report filed by the parties, overruled each and every exception, confirmed the report in all respects, approved and adopted the auditor and master's findings of fact and conclusions of law, and in accordance with his recommendations entered the judgments above stated. Its order also awarded costs (including those of the proceedings before the auditor and master) against Maryland.

The reference of the case to the auditor and master is said by the appellees to have been made pursuant to Code 1951, Article 26, Section 9, and in the exercise of the inherent power of the trial court. The appellant makes a somewhat oblique attack in its brief in this Court on its validity on the ground that the above statute applies only to matters of account, and that the auditor and master went far beyond such matters in considering and reporting upon the question of conversion. So far as we can discover, no such objection was made in the trial court. Both sides produced considerable testimony before the auditor and master on the question of conversion and engaged in extensive cross-examination on the same question. The matters of accounting which seem to have served as the immediate occasion for the order of reference were brought into the case by the appellant's cross-claim. Even if the appellant's present objection might have been meritorious in the trial court (which we do not decide and do not intend to imply), it comes entirely too late when first raised in this Court. See Rule 9 of the Rules of this Court Respecting Appeals.

Motion to Dismiss the Appeal.

The appellees have moved to dismiss Maryland's appeal on two grounds: (1) that Maryland's exceptions to the report of the auditor and master are insufficient; (2) that Maryland has not complied with Rule 39, Section 1(e) of the Rules of this Court Respecting Appeals, in that the appellant has not incorporated all of the pertinent testimony in the appendix to its brief.

(1) Sufficiency of the Exceptions. Although the appellant's exceptions to the report of the auditor and master were apparently filed late, this delay, as the appellees concede, is not fatal. Schwartzman v. Payne, Md., 100 A.2d 23, 26. However, the appellees strongly urge that the exceptions violate the rule requiring specific and particular exceptions to such a report. Young v. Omohundro, 69 Md. 424, 431-432, 16 A. 120.

It appears from the briefs that although Maryland did not file formal, specific exceptions to the report of the auditor and master, it did submit to the trial court a lengthy document setting forth its objections to the report and that this was considered by the court. The wide scope of the order of reference and the actual proceedings under it and the report of the auditor and master all show that what was before the trial court for its actual adjudication went considerably beyond a mere statement of account. Though precise exceptions, such as were filed by the appellees, would have been helpful in sharpening the issues, before the trial court, and perhaps on appeal as well, it appears that all of the questions presented to us were passed upon by the trial court, with the exception of the validity of the order of reference. The appellant's contention on that point has already been rejected. Under the above circumstances, we do not think that Maryland's appeal should be dismissed for failure to file specific exceptions. By this, we do not wish to be understood as approving the very general form of 'exceptions' filed by the appellant.

(2) Compliance or Non-Compliance with Rule 39. The appellant has based the statement of facts contained in its brief essentially upon only such testimony or other evidence as supports its contentions; and likewise in its appendix it has included generally only such matters (other than some of the pleadings, the order of reference, the report of the auditor and master and the final order of the court) as it must have considered favorable to its contention. We think that in the statement of facts there should have been at least a candid admission that the facts were in controversy and were largely resolved below in favor of the appellees, even though this could and would be ascertained from the report of the master and the order confirming it, which are contained in the appendix.

The appellant's statement of facts and appendix together fall far short of presenting all of the data which is necessary to enable this Court to determine the questions presented for decision.

The appellees have appropriately set forth their own contentions as to the facts and have included in their appendix material supporting those contentions. With the aid of the material so furnished, we believe that the case has been adequately presented, and it has been fully argued on the merits. The Court has considered the case on the merits and will deny the motion to dismiss Maryland's appeal and will proceed to determine both appeals on the merits as now presented.

Accordingly, the motion to dismiss Maryland's appeal is denied.

The Original Claim.

In the late summer of 1950, Mr. Fabian Kolker, Vice-President of Maryland, telephoned Mr. H. A. White in Seattle, to find out if White could supply some plywood. The two companies had done business for about a year and a half previously. As a result of a car shortage then existing, in order to ship plywood from the West Coast to the East it was frequently necessary to start a freight car from the northwest lumber region with a partial lading of lumber and to route it through the plywood country, where the plywood cargo could be loaded into it, and the car would then be forwarded eastward. Mr. White testified that he and Mr. Kolker discussed this situation and agreed that a carload of lumber and plywood should be shipped. Mr. Kolker admitted that Mr. White informed him of the necessity of including some lumber in the car in...

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