Moses v. Allen

• Decision Date: 21 March 1900
• Citation: 46 A. 323,91 Md. 42
• Parties: MOSES v. ALLEN.
• Court: Maryland Court of Appeals

46 A. 323

91 Md. 42

MOSES v. ALLEN.

Court of Appeals of Maryland

March 21, 1900

Appeal from circuit court, Baltimore county; N. Charles Burke Judge.

"To be officially reported."

Action for breach of contract by Edward M. Allen against James Moses. From a judgment in favor of plaintiff, granting instructions, and sustaining his demurrer to certain pleas defendant appeals. Affirmed.

Argued before MCSHERRY, C.J., and FOWLER, PEARCE, SCHMUCKER, and JONES, JJ.

James J. Archer and Albert Constable, for appellant. George L. Van Bibber, S. A. Williams, and D. G. McIntosh, for appellee.

SCHMUCKER J.

This appeal brings up for review the action of the circuit court for Baltimore county in granting the fourth prayer of the appellee, who was plaintiff below, and in sustaining his demurrer to certain pleas filed to the amended declaration. The facts material to the controversy may be stated as follows: The appellant, who is an earthenware manufacturer residing in New Jersey, owned a flint mill and quarry in Harford county, from which he procured ground flint for use in his factory. On May 6, 1893, he made a contract with the appellee for an immediate lease and an ultimate sale to him of the flint mill and quarry. This contract appears from two papers executed at the same time, one of which is in the nature of a lease, and the other is an agreement for the sale and purchase of the leased property. The general scheme of the transaction was that the appellee should rent the property for five years, and during that period the appellant should purchase a portion of each year's output of flint, and should retain part of the price therefor, and apply it on account of the purchase money for the property. At the expiration of the five years the appellant was to convey the entire property to the appellee, who was then to give him a mortgage thereon for such balance of the purchase money as had not by that time been paid by the amounts to be retained from the price of flint furnished him during the five years. The appellee was also to have the privilege of paying this balance of the purchase money for the property in flint. He was in the meantime to pay interest on the purchase money, and also the taxes and insurance on the property, and keep it in repair. The amount to be paid for the property was $12,000. The terms and provisions of the two papers constituting the contract are appropriate to the transaction, and consistent with each other, except that, while the second paragraph of the lease contains a positive undertaking by the appellant to purchase from the appellee 800 tons of ground flint in each and every one of the five years of the lease, the thirteenth paragraph provides that, if the appellant should "not be able to take so much as 800 tons of ground flint per year, then the said E. M. Allen [the appellee] shall only be required to pay an amount in flint or cash equal to fifty cents per ton for what flint he takes from the quarry each month." The appellant contended that the thirteenth paragraph was intended to relieve him from his obligation to take 800 tons of flint per year, and to regulate the method of paying the purchase money for the property in case he took less than that amount of flint. The appellee, on the contrary, insisted that the appellant was, by the second paragraph of the lease, under a positive obligation to purchase the 800 tons per year, and that the whole purpose of the thirteenth paragraph was to give to the appellee the right to pay for the property by a royalty on his annual output of flint in case of a breach by the appellant of his promise to take 800 tons per annum. The appellant not only failed to purchase the 800 tons of flint per year, but took only 738 tons of it in the first three years of the lease; asserting that he could not use a larger quantity in his business, owing to the depression in trade, etc. The appellee sued the appellant for breach of the contract, and attached the flint mill and quarry. The suit was instituted in Harford county, and was moved to Baltimore county, where the trial occurred. Before issue was finally joined in the case, there were a number of amendments to the pleadings, and demurrers were filed by each party to certain of the pleadings of the other; but the only question arising upon the pleadings, which the record presents for our consideration, is the action of the court in sustaining the demurrer of the appellee to the first, fourth, and sixth pleas to the amended declaration.

The first plea set up the single defense that the appellant had been unable to take of the appellee as much as 800 tons of ground flint in any one year since the making of the contract, but the plea included a rehearsal, covering two full pages of the record, of the reasons why he could take no more. These reasons included the want of storage capacity the depressed state of the market, the probable action of the federal government in reducing the tariff, and similar matters, actual and contingent, which were properly matters, so far as they were admissible in the case, not of pleading, but of evidence. ...