Middendorf, Williams & Co., Inc. v. Alexander Milburn Co.

• Decision Date: 13 January 1921
• Docket Number: 73.
• Citation: Middendorf, Williams & Co., Inc. v. Alexander Milburn Co., 113 A. 348, 137 Md. 583 (Md. 1921)
• Parties: MIDDENDORF, WILLIAMS & CO., Inc., v. ALEXANDER MILBURN CO.
• Court: Maryland Court of Appeals

113 A. 348

137 Md. 583

MIDDENDORF, WILLIAMS & CO., Inc., v. ALEXANDER MILBURN CO.

No. 73.

Court of Appeals of Maryland

January 13, 1921

Appeal from Superior Court of Baltimore City; Henry Duffy, Judge.

"To be officially reported."

Action by the Alexander Milburn Company against Middendorf, Williams & Co., Incorporated. Judgment for the plaintiff, and the defendant appeals. Affirmed in part, and reversed in part.

The following are the prayers referred to in the opinion:

Plaintiff's Second Prayer.

The jury are instructed that in case their verdict shall be for the plaintiff they are at liberty in their sole discretion to allow the plaintiff interest at the rate of 6 per cent. per annum from the time when they shall find from the evidence the damages sustained by the plaintiff (if the jury shall so find) were incurred.

(Granted.)

Defendant's Prayers.

(7) The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to maintain the fifth item of $20.20, the sixth item of $64.92, the seventh item of $177.90, the eighth item of $588, or the ninth item of $125, in the plaintiff's bill of particulars, and that therefore, even if they find a verdict in favor of the plaintiff, they cannot award any damages on account of such items or include the amounts thereof in any verdict that they may render.

(Refused.)

(8) The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to maintain the eleventh item in the plaintiff's bill of particulars amounting to $6,000, and that therefore, even if they find a verdict in favor of the plaintiff, they cannot award any damages on account of such item or include the amount thereof in any verdict that they may render.

(Refused.)

(9) The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to maintain the twelfth item in the plaintiff's bill of particulars amounting to $2,000, and that therefore, even if they find a verdict in favor of the plaintiff, they cannot award any damages on account of such items or include the amount thereof in any verdict that they may render.

(Refused.)

(10) The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to maintain the sixteenth item of $73.60, the seventeenth item of $75.40 or the eighteenth item of $250 in the bill of particulars filed by the plaintiff, and that therefore, even if they find a verdict in favor of the plaintiff, they cannot award any damages on account of such items or include the amounts thereof in any verdict that they may render.

(Refused.)

(11) The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to show what it would have cost to secure the money desired by the plaintiff corporation at the time of the alleged breach by the defendant of its alleged contract, and that therefore the jury cannot in any event award the plaintiff more than nominal damages.

(Refused.)

(12) The defendant prays the court to instruct the jury that, if the jury find from the evidence that the defendant Middendorf, Williams & Co., agreed to take up the matter of the sale of the plaintiff's preferred stock only upon the condition that Howard P. Page should first investigate, report upon, and give a favorable opinion upon said transaction, and if the jury further find that the said Page did not give a favorable opinion upon said transaction, but gave an unfavorable one in reference thereto, then the verdict must be in favor of the defendant.

(Granted.)

(13) The defendant prays the court to instruct the jury that, even if they find from the evidence that the defendant contracted to offer the plaintiff's preferred stock for sale to the clients or customers of the defendant and subsequently refused so to do, yet if the jury further find that such refusal was due to the fact that at subsequent investigations the defendant on reasonable grounds reached the honest belief that it could not properly and honestly recommend or offer said stock to their clients as a good investment security, then the verdict must be for the defendant.

(Refused.)

(14) The defendant prays the court to instruct the jury that, if they find from the evidence that, even if the defendant had endeavored to sell the plaintiff's preferred stock within a reasonable time after July 21 (during the summer and fall of), 1914, that the defendant, by reason of market conditions then existing, could not have succeeded in such efforts, then their verdict must be for the defendant.

(Granted as modified.)

Portion in parenthesis is part stricken out by the court. Portion in italics is the part inserted by the court.

(15) The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to show that the defendant, Middendorf, Williams & Co., at the time of the alleged breach of the alleged contract between the parties, could have sold the plaintiff's preferred stock, even if they had endeavored so to do, and therefore the jury cannot in any event award the plaintiff more than nominal damages.

(Refused.)

(16) The defendant prays the court to instruct the jury that they cannot award more than nominal damages to the plaintiff in this case unless they find the following facts:

(1) That the defendant would have succeeded in selling said stock had they endeavored so to do.

(2) That at the time of the defendant's refusal to sell said stock no other responsible broker could have been found by reasonable efforts on the part of the plaintiff who would have been able and willing to sell said stock on the same or equally advantageous terms.

(Refused.)

(17) The defendant prays the court to instruct the jury that it appears by the uncontradicted evidence that it was agreed between the plaintiff and defendant at the request of the defendant that Mr. Tinsley, of the defendant corporation, was to be given $3,000 par value of common stock in the plaintiff corporation; that therefore the actual value of this stock was one of the expenses necessarily incident to the so-called Middendorf plan of financing, and such value must be deducted from any items the jury may allow in favor of the plaintiff for expenses incurred under any other plan of financing.

(Refused.)

(18) The defendant prays the court to instruct the jury that, if they find a verdict for the plaintiff in this case, the difference between the cost to the plaintiff under the plan of the Industrial Corporation and Middendorf plan establishes the correct measure of damages only in the event that the jury shall further find from the evidence in the case that the plaintiff could not, by the exercise of reasonable efforts, raise the money desired in the manner contemplated by the Middendorf plan.

(Refused.)

(19) The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to establish the contract set out in the plaintiff's declaration, and therefore, under the pleadings in this case, the verdict must be for the defendant.

(Refused.)

Enos S. Stockbridge and Vernon Cook, both of Baltimore, for appellant.

J. Kemp Bartlett, Jr., and J. Kemp Bartlett, both of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellee.

ADKINS J.

This is the second appeal in this case. The judgment was reversed before mainly because of erroneous rulings as to the proper measure of damages. The former appeal is reported in 134 Md. 385, 107 A. 7.

According to the testimony offered in behalf of appellee, appellant, an incorporated firm of investment brokers, agreed to "undertake to make the issue of the $44,000 or $46,000 7 per cent. preferred stock of the above company the [appellee] within a reasonable time and charge us [appellee] the sum of $5,000 cash for so doing."

The above quotation is from the evidence of Jenkins, the president of appellee, as to the contents of a letter from him to appellant, written the day after the oral agreement was reached, and which Jenkins says Mr. J. W. Middendorf, the officer of the appellant company with whom the negotiations were had, admitted embodied the terms of the oral agreement. Middendorf, in addition to his charge of $5,000 for disposing of this issue of stock, required certain other things to be done. "He said he would require two directors to be placed upon the board of his nomination; that he required me to assign a large number of the patents and patent applications which I had to the reorganized corporation; that he would require me to serve the corporation for quite a period of time. ***" "Mr. Middendorf said that certain changes would have to be made in the by-laws and charter of the corporation, and that he would wish to approve such changes; these changes included the increased directorate and the larger issue of stock for his financial purposes." "Mr. Middendorf said that he could sell this stock. He said that he had an opportunity just then between other operations, and he urged me to complete the change in the constitution and charter, because it was a very opportune time for it." Middendorf expressed no doubt at all about selling the stock. "In fact, his concluding statement after saying he would make the offer to sell it was, 'Oh, I can sell this very easily."' Witness accepted this offer first orally and then confirmed it by letter on or about May 15, 1914. Messrs. Whitlock, Deming & Kemp acted as attorneys for both parties, and all the things required by Middendorf were done and approved by him. Afterwards, about the middle of June, witness called to see Middendorf, who told him that he had received a report from Mr. Page,...