Mercantile Trust & Deposit Co. v. Rode
| Decision Date | 11 January 1921 |
| Docket Number | 38. |
| Citation | 112 A. 574,137 Md. 362 |
| Parties | MERCANTILE TRUST & DEPOSIT CO. v. RODE. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; James M. Ambler, Judge.
Action by J. William Rode against the Mercantile Trust & Deposit Company, executor and trustee under the last will of Samuel M. Robinson, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Argued before BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS and OFFUTT, JJ.
Watson E. Sherwood and Edward Duffy, both of Baltimore, for appellant.
George M. Brady, of Baltimore (Westcott & Weaver, of Camden, N. J on the brief), for appellee.
This is an action in assumpsit brought in the Baltimore city court by the appellee, the plaintiff below, for the recovery of the unpaid balance of the purchase price of tomatoes, which he claimed to have sold to Samuel M. Robinson, of whose estate the appellant, the defendant below, is executor and trustee for expenses incurred in hauling the tomatoes to the cars in which they were shipped, and for the value of a large number of the baskets in which the tomatoes were contained, and which were to have been returned by Robinson to the appellee.
In addition to the common counts, the declaration contains a special count, in which it is alleged, in substance, that the plaintiff sold to Samuel M. Robinson tomatoes in the quantities and at the prices set forth in the bills of particulars filed with the narr., and that at the same time he was employed by Robinson to do the "carting of said tomatoes," at the prices set out in the bills of particulars, and that in consequence of such employment he did the carting mentioned, and that thereupon Robinson became indebted to him in the sum of $15,013.76, of which $5,892.48 had been paid, leaving an unpaid balance of $9,121.28; that the several sales and agreements under which the tomatoes were sold constituted a "season's transaction." Attached to the declaration were 11 "open accounts" setting out in detail the charges made by Rode against Robinson. The first 10 set forth the price and "cartage" charges of as many different shipments of tomatoes, the first of which sales was on July 22, 1918, and the last of which was on August 21st of the same year. The eleventh set out the number and price of certain baskets in which the tomatoes had been shipped to Robinson, and which belonged to the plaintiff, and which it was claimed Robinson failed to return.
The trial resulted in a verdict for the plaintiff for $9,121.29 upon which in due course a judgment was entered, and from that judgment this appeal was taken.
The record contains 14 exceptions, 13 of which relate to the court's rulings upon questions of evidence, and 1 to its rulings on the prayers.
The nature of the questions presented by the appeal call for no extended review of the evidence, and in dealing with them a brief analysis of the actual controversy between the parties will be sufficient. The theory of the plaintiff's case, as stated by his witnesses, is that the tomatoes were all sold to Robinson "on the pavement" or "in the store," in Philadelphia, and that as they then were of the quality and in the condition represented, he was entitled to receive from Robinson the full amount of the purchase price therefor, without deduction for any damage resulting to them from any cause whatever during their transportation from the pavement or store where they were when sold, to Robinson's place of business in Baltimore.
The appellant's defense to the action cannot be so briefly stated nor so readily ascertained. Samuel M. Robinson, who actually conducted in his own behalf the negotiations incident to the purchase of the tomatoes, died before the present suit was instituted, and consequently the appellant's theory of the case must be gathered from the telegraphic and written correspondence between Robinson and Rode, from the testimony of the appellee's witnesses, and such inferences as may properly be drawn therefrom. By reference to these sources of information it appears to be this: That as Robinson from time to time, as the shipments were made, denied the accuracy of the appellee's statements of his indebtedness, and contended in effect or by implication that Rode as the seller was not only obliged to see that the tomatoes were as represented when sold but was also bound to see that they were safely carried to the cars and loaded for shipment to Robinson, and that as the tomatoes when received were in bad condition as a result of Rode's default in either the one duty or the other, and he (Robinson) was entitled to deduct from the amounts of Rode's bills, the price of all such tomatoes as were unfit for use when received by him at Baltimore, and also to deduct the "cartage charges," there was, as a result of their respective contentions, an actual dispute between them as to the real meaning and effect of the contract or contracts of sale at the time each of the several shipments of tomatoes was received, and also as to the amount due by Robinson to Rode on account of them; and that since Robinson sent out checks in payment of the several shipments for the amount named in the statement sent him by Rode less the deductions, which Robinson claimed should be made, and at the same time sent Rode certain memoranda, written on the invoices or statements, as well as on separate papers, and that, as Rode with knowledge of the dispute, and of the purpose for which the checks were sent, accepted and used them, he thereby entered into an "accord" with Robinson, that the checks should be in full settlement of any claim which Rode might have against Robinson for or on account of such shipments, and that upon the payment of such checks all such claims were satisfied.
Practically all the negotiations were carried on by three persons, Samuel M. Robinson of Baltimore, a manufacturer of canned goods, William L. Fidler, a produce broker, operating in Philadelphia, but who had no fixed place of business, and Charles L. Fidler his son, who was employed by Rode and who represented him in the transactions involved in this case.
In 1918 Robinson, needing a supply of tomatoes for use in his factory during that season, employed William L. Fidler to purchase for him a part of that supply. Fidler thereupon on different occasions purchased tomatoes from J. William Rode, a commission merchant in Philadelphia, who was represented on those occasions by Fidler, Jr. He purchased these tomatoes "on the pavement" or "in the store" in Philadelphia, and he, Fidler, Sr., Robinson's broker, superintended the hauling of the tomatoes to the cars for shipment, and also saw to the loading of them, but the carters who did the hauling were actually paid by Rode.
The tomatoes so shipped arrived in Baltimore in bad condition, due, it was claimed, to the manner in which they had been loaded. As each shipment was made, Rode sent a statement of the amount due on it for the price of the tomatoes, and for the cartage, the expense of hauling them to the cars, and as these statements were received by him (Robinson) deducted from the amounts charged thereon the charges made for such tomatoes as were damaged and the charge for cartage, and sent Rode his check for the balance occasionally at a lower rate than that charged in the statement, and at the same time he sent with the check Rode's statement with the changes and deductions written thereon, and also attached a written memorandum setting out in greater detail these changes and deductions, and on August 1st he wrote a letter to Rode again directing his attention to the deductions from Rode's charges for shipments made prior to that time and to the reasons therefor.
In addition to the tomatoes thus purchased through Fidler, Sr., as a broker, Robinson bought one shipment directly from Rode, and he also made changes and deductions in the statement sent him for the amount due on that shipment, and sent his check on account of the amount appearing to be due after these changes and deductions had been made. These checks and memoranda were in due course received by Rode without comment or complaint. He cashed the checks, but except for such inferences as may be drawn from that fact he did not inform Robinson whether he was satisfied with the deductions and changes so made, or make any protest against them until he had completed his shipments.
This is explained by Fidler, Jr., as due to the fact that they did not take Robinson "seriously." He said that no attention was paid to the deductions and memoranda thus made by Robinson; that he "had never taken seriously anything that Robinson would have done"; if he had split the bills in half witness would not have taken them seriously; that they paid no attention to Robinson's telegram to Rode of August 3d reading: While the record does not disclose any reason for this facetious view of Robinson and his conduct, as a matter of fact nothing was said to Robinson about the deductions until after the last shipment from Rode to Robinson had been made, and even then specific reference was only made to a single shipment.
At the time the tomatoes referred to were sold, the plaintiff claimed that it was understood that the baskets containing them belonged to the seller, and should be returned to him by the buyer, and as Robinson failed to return a part of them, the appellee also sought to recover in this action the value of the baskets so retained.
The plaintiff was permitted to prove over the defendant's objection that Fidler, Sr., had been employed as a broker for Robinson in 1917 and also to prove the character and extent of his agency under that employment. Manifestly such...
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