McClernan v. Hall
| Decision Date | 21 October 1870 |
| Citation | 33 Md. 293 |
| Parties | MATTHEW MCCLERNAN, Trading as McClernan & Co., v. M. TAYLOR HALL and H. T. D. Loney, Trading as Hall & Loney. |
| Court | Maryland Court of Appeals |
Appeal from the Baltimore City Court.
This was an action brought by the appellant to recover from the appellees on a contract for the sale of a thousand bags of Quercitron bark. The narr. contained the usual money counts. The seventh count declared that the defendants on the 10th of August, 1868, bought from the plaintiff a thousand bags of good No. 1 merchantable ground oak Quercitron bark at the price stated, to be delivered to the defendants or to a certain John Koper, between the 1st and 10th of October 1868--that the plaintiff notified the defendants that the bark was ready for delivery according to the contract, but that they refused to receive it. The eighth count declared that the defendants as agents of the said Koper, to the plaintiff unknown, purchased said bark which was to be delivered to the defendants or their alleged principal within the time specified; that the plaintiff tendered the bark in accordance with the contract, but that the defendants refused to receive it, and that the plaintiff gave the credit of said bark to the defendants, and charged the same to them, and that the value of said bark had greatly diminished.
The defendants pleaded the general issue.
At the trial the plaintiff offered certain parol evidence, taken subject to exception, to show that he sold the bark to the defendants personally, and that he looked solely to them as the purchasers; he also offered in evidence the following papers:
Baltimore August 10, 1868.
As agents for Mr. John Koper, of No. 10 Old Slip, New York, we have this day bought and agree to receive one thousand bags of No. 1 merchantable ground oak Quercitron Bark, at $47 cash per long ton, (of 2240 lbs.,) to be tendered and delivered to us (or to said principal) in lots of not less than 500 bags between the first and tenth days of October, 1868. And we hereby acknowledge to have received one dollar on account of this contract to bind our principal.
Hall & Loney.
(U. S Stamp 5 cts.)
August 10, 1868.
We, the undersigned, have this day sold to Mr. John Koper, No. 10 Old Slip, New York, one thousand bags of No. 1 merchantable Quercitron Bark at $47.00 per ton, which we promise to deliver on board of New York steamers, in lots of not less than 500 bags, to be delivered between the 1st and 10th day of October, 1868.
McClernan & Co.
The plaintiff as a witness testified that he signed the memorandum of sale as a business accommodation, and because the defendant Hall asked him; it was also shown that this paper was transmitted by the defendants to Koper, who declined to accept the bark.
The defendants offered no testimony.
The plaintiff presented a number of prayers which the court refused to grant, and instructed the jury that there was no evidence from which they could find for the plaintiff; that if they found all the facts offered in evidence by the plaintiff, they were not sufficient to sustain a verdict in favor of the plaintiff. To the rejection of his prayers and to the instruction given by the court the plaintiff excepted and the verdict and judgment being against him he appealed.
The cause was argued before BARTOL, C.J., MAULSBY, MILLER and ALVEY, JJ.
John Henry Keene, Jr., for the appellant.
The court below erred in deciding that should the jury find all the facts testified to by the plaintiff, they afforded no evidence upon which he was entitled to recover. And the question to whom the credit was given, and whether it was a sole and exclusive credit to the appellees, was only to be found by weighing all the testimony in connection with both papers, in any form of action instituted by any of the parties thereto. Thompson v. Davenport, 2 Smith Lead. Cases, 433; York County Bank v. Stein, 24 Md. 463; Sumwalt v. Ridgely, 20 Md. 115; Wyman v. Gray, 7 H. & J. 411; 3 Robinson's Pr. 54-62; 1 Greenl. Ev. 89, 284; Story on Agency, sec. 288.
Alexander H. Hobbs, for the appellees.
The paper writings of the 10th of August, 1868, merged all antecedent negotiations between the parties, and...
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