Roberts Bros. v. Consumers' Can Co.

• Decision Date: 06 December 1905
• Citation: 62 A. 585,102 Md. 362
• Parties: ROBERTS BROS. v. CONSUMERS' CAN CO.
• Court: Maryland Court of Appeals

62 A. 585

102 Md. 362

ROBERTS BROS. v. CONSUMERS' CAN CO.

Court of Appeals of Maryland

December 6, 1905

Appeal from Circuit Court of Baltimore City; Henry D. Harlan, Judge.

Suit by the Consumers' Can Company against Roberts Bros. From a decree in favor of plaintiff, defendants appeal. Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, SCHMUCKER JONES, and BURKE, JJ.

William A. Wheatley, for appellants.

Joseph C. France, for appellee.

SCHMUCKER J.

This is an appeal from a decree of the circuit court of Baltimore City, which set aside an award rendered by arbitrators. The subject of the award was a dispute between the appellants and the appellee growing out of the sale of a quantity of tin cans intended for packers' use. The entire dispute was submitted for decision to three arbitrators, who heard evidence upon the subject, and made an award in writing which was subsequently, upon a bill filed for that purpose set aside by the decree now appealed from. The merits of the controversy covered by the arbitration are not before us on this appeal, and we express no opinion thereon pro or con but it will be necessary for us to notice the nature and subject-matter of that controversy, in order to clearly discuss the issue presented by the record before us.

Both the appellants and the appellee are dealers in tin cans in Baltimore City. In the summer of the year 1903 the appellee purchased a large quantity of cans intended for shipment to its western customers. The cans were sold to the appellee f.o.b. at Baltimore, but in the course of dealing between the parties they were loaded by the appellants into the cars of the Baltimore & Ohio Railroad Company at Baltimore, and consigned directly to the parties who had purchased them from the appellee, which supplied the names and residences of the consignees for that purpose. Sample cans were submitted for approval to the appellee, but the cans themselves, which were consigned to the purchasers, were never seen by the appellee. Whenever sales of the cans were made by the appellee, they were loaded into the cars, and the bills of lading therefor were taken out in its name, and it drew drafts against the bills for the price at which it had sold the cans, and the drafts, with the bills of lading attached, were placed in the hands of the appellants as collateral and for collection. As the appellee made a profit on the cans sold by it, the proceeds of the drafts would slightly exceed the amount due on them to the appellants, who would account to the appellee for the excess. In this course of dealing a car, said to be No. 91,106, loaded with cans, was shipped by the appellants to the appellee's purchaser, the Westfield Packing Company, located in the state of Indiana, which paid the draft drawn against the bill of lading for the car, in order to get possession of the cans. After that company had gotten possession of the cans it examined and rejected them as being unmerchantable and defective in quality, and, to recover the damages which it had thereby sustained, it sued out an attachment against the appellee of Indiana, and levied the writ on several other car loads of the appellee's cans which had come within that jurisdiction. The Westfield Company recovered a judgment in rem in the attachment suit for over $1,200, which the appellee had to pay, in order to release the cars seized under the attachment. Other car loads of the cans purchased from the appellants by the appellee, and sold by it to the western packing companies, affiliated with the Westfield Company under a common management, were rejected by the purchasers and returned to Baltimore to the appellants, who held the bills of lading therefor. When the appellants demanded payment for the cans from the appellee, it claimed the right to deduct from the price thereof the losses which it had sustained by reason of their alleged defective quality and unmerchantable condition. Litigation, both at law and in equity, between the appellants and the appellee resulted from this state of affairs, and the arbitration was resorted to for the adjustment of the differences between them.

The parties, on April 28, 1904, entered into a written agreement briefly reciting their conflicting claims, and submitting for determination to three arbitrators "the whole dispute between them, claim and counterclaim." The submission provided that "said arbitrators shall by reasonable notice from time to time give to said parties the opportunity of producing evidence before them, they shall determine all questions of law and fact, they shall make their final award in writing not later than the 6th day of June, 1904, unless said time is extended by the written assent of both parties and such final award shall determine what amount of cash, if any, is due by either party to the other, and what, if anything, either party shall do as a condition of being entitled to payment of the amount awarded. *** The evidence of any witness not residing in the state of Maryland may be taken before a notary public by either party upon five days' notice to the other of the time and place. The evidence, as taken, shall be returned to the arbitrators under the hand and seal of the notary." It was further provided in the submission that the award of the majority of the arbitrators, in case of a failure of the entire number to agree, should be binding on both parties. The arbitrators held a number of sessions between May 5th and 17th, and heard testimony, oral and documentary, produced before them by the parties to the submission, and on the 19th day of May they rendered their unanimous award in writing, finding that the appellee was indebted to the appellants in the sum of $5,101.99; that upon the payment thereof they execute and deliver to it a release of all demands of every kind to date. On the 27th of May the appellee filed the bill in the present case, alleging the dealings in tin cans between it and the defendants, the dispute arising therefrom, the arbitration, and the award, all of which we have briefly mentioned. It also alleged the following facts: On May 6th, while the arbitration was in progress, it was agreed between the parties and the arbitrators that the appellee should have until May 17th to take and return the depositions of witnesses from Noblesville, Ind., touching the condition of the cans in car No. 91,106, upon which depended the substantial question at issue before the arbitrators whether the said cans were of such quality and in such condition as to constitute a good delivery under the contracts between the parties. The depositions were taken before a notary at Noblesville on May 13th, after notice to the appellants, and certified under the hand and seal of the notary as having been taken in the arbitration, but, through mistake and contrary to the directions of the appellee's attorney, they were mailed by the notary in a box to the address of the appellee, instead of that of the arbitrators. The box containing the depositions was delivered on Sunday, May 15th, at the office of the appellee, which was on that day in charge of a watchman, who handed the box unopened to the president of the appellee on his arrival at the office at about 8 o'clock on Monday morning. He promptly took it to the office of one of the arbitrators, and left it with him, still unopened. On May 17th, the day fixed for the final session of the arbitrators, the package containing the depositions was produced by the one of the arbitrators having it in his possession, but by a vote of two to one the arbitrators decided not to open the...