Appeal
from Superior Court of Baltimore City; Walter I. Dawkins
Judge.
OFFUTT
J.
The
Frederick City Packing Company, a corporation, is engaged in
the business of manufacturing and selling canned goods. The
S. J. Van Lill Company, a corporation, is engaged in the city
of Baltimore in the manufacture and sale of various food
products. Thomas H. Roberts & Co., a corporation, is engaged
in the commission brokerage business in Philadelphia, and
Howard E. Jones, trading as Howard E. Jones & Co., is engaged
in a similar business in Baltimore, and they were all so
engaged in 1925. Thomas H. Roberts & Co., having been since
1891 the selling agents for the Frederick City
Packing Company, in 1925 sold all the canned goods
manufactured by it.
In
January, 1925, Howard E. Jones telephoned orders to Roberts & Co. for $11,000 cases of canned corn, but later directed it
to make out a contract for 10,000 cases of that order in the
name of the S. J. Van Lill Company. On January 23, 1925,
Roberts & Co. wrote Jones a letter in which it said:
"Referring to your telephone order to-day, we have
booked you for 5,000 cases of the Frederick City Packing
Company's No. 2 tin standard unsweetened corn, under
Pride of Valley label, out of the 1925 packing, at $1.00 per
dozen f. o. b. Frederick, Md., to be covered by our regular
pro rata contract, but with 75% delivery guaranteed. Subject,
however, to our approval of the names of the buyers, which
you will submit to us.
This also applies to additional order 'phoned in for
6,000 cases more at $1.00 per dozen f. o. b. Frederick, Md.,
and we have protected you likewise on this, making a total of
11,000 cases awaiting buyers' names."
Jones
then executed a memorandum of sale, dated January 23, 1925,
which contained this statement:
"Sold to Howard E. Jones & Co., Baltimore, Md., for
account of Thos. Roberts & Co., Philadelphia:
11,000 cases No. 2 Frederick City Packing Company standard
unsweetened crushed corn at $1.00 per dozen.
Remarks: If packer's label to be used, buyer's option
of the following brands: Proclamation, Pride of Valley,
Artic, Richland, Mountain View or Early Morning Bloom.
If shipped unlabeled or under buyer's label, allowance of
$1.50 per M. for labels.
1925 pack.
Future contract will follow.
Terms: Cash, less 1 1/2% ten days, f. o. b. Frederick, Md.
Ship: When packed--shipping instructions to be furnished.
Howard E. Jones & Co., Brokers."
On
January 24th Roberts & Co. wrote Jones as follows, in which
it said in part:
"* * * We guarantee the pack this year to equal last
year's samples. We are sending samples under the Pride of
the Valley label, that will represent what we guarantee to
deliver for future delivery, namely strictly unsweetened
crushed corn. Now if they want the extra sweetened this would
cost them 5 cents per dozen more, but these samples only
represent the unsweetened, as they did not pack any of the
extra sweetened last year."
On
February 7, 1925, Jones wrote Roberts & Co. this letter:
"As per telephone conversation, please insert S. J. Van
Lill Company, Baltimore, Md., as the buyers for the 10,000
cases of Frederick City, 1925 pack corn you have booked for
us.
On the 1,000 cases of the same goods insert Wagner Bros.,
Baltimore, as the buyers.
Also let us have 1/2 dozen tins of No. 10 last year's
pack, so that Van Lill can start working on same, and send us
samples of the different labels that you will use on the pack
of corn, as we understand you have several labels there.
Let us have contracts for buyers' signatures."
On
February 9, 1925, Roberts & Co. wrote Jones that:
"We have your letter of the 7th and as requested we have
assigned 10,000 cases of your purchase of Frederick City corn
to S. J. Van Lill Company, Baltimore, and 1,000 cases to
Wagner Bros., and are inclosing contracts herewith."
And on
February 13, 1925, Jones wrote Roberts & Co., inclosing a
"properly signed contract covering your sale to S. J.
Van Lill Company of 10,000 cases of Frederick City Packing
Company's corn," described as "No. 2 tin
standard unsweetened corn," at $1 per dozen f. o. b.
factory under packer's label. Under that contract the
seller agreed to deliver 75 per cent. of the goods sold, and
to furnish as promptly as possible "cans well filled
with sound wholesome fruit" of the "packing of
1925." It guaranteed that the goods sold should conform
to the National Food and Drug Act, and in lieu of a guaranty
against "swells" made an allowance of one-fourth of
1 per cent.
On
August 13, 1925, Roberts & Co. wrote Jones that the Frederick
City Packing Company was demanding immediate shipping
instructions for all corn orders, and on the following day
Jones wrote, giving shipping instruction for 725 of the 1,000
cases sold to Wagner Bros., and on August 19, 1925, he wrote
Roberts & Co. as follows:
"It seems as though unsweetened corn doesn't
sell--we have been offering our trade the orders booked for
Lord Mott Company and S. J. Van Lill Company, as they
informed us they could not sell this corn--buyers want
sweetened corn.
Now both of these buyers are anxious to sell this unsweetened
corn. Can't you help them out? You know just what trade
uses unsweetened corn. Your quotations to-day are $1.05 per
dozen, factory--this corn was booked with you at $1.00 per
dozen--we offer it to you to-day at $1.00 per dozen, factory.
It strikes us that you would be only too glad to have it in
your possession.
We are making special efforts again this week to sell it and
trust we will be successful, but don't you make shipment
of either of these two orders until you have received
specific shipping instructions from us. We know you
aren't ready yet to ship, as you just started packing
corn.
We asked you to send us twelve samples but you informed us
you could not do so at this time. We wanted these samples to
help us dispose of this corn, and then we could immediately
give you shipping instructions, unless you can give us orders
for it yourselves."
Again
on the same day he wrote:
"Supplementing our favor of the 14th, after the 25 cases
which we gave you instructions for of No. 2 Pride of Valley
brand crushed corn yesterday,
there remains yet in Wagner Bros. order for 1,000 cases 250
cases that no instructions have been given you on, so you
will please ship these 250 cases, and 750 cases part of the
order booked for S. J. Van Lill Company, making 1,000 cases
in all of No. 2 Pride of Valley brand standard crushed
corn, to Howard E. Jones & Co., c/o B. & O. Delivery Camden
Warehouse, Baltimore, sending the invoice to us, made out
in S. J. Van Lill Company's name.
We are doing our best to dispose of this corn for Van Lill as
per our letter to you earlier in the day."
Following
that letter 1,000 cases of canned corn were shipped by the
Frederick City Packing Company as directed and on August 29,
1925, the Van Lill Company wrote Roberts & Co. as follows:
"Referring to the 750 cases No. 2 tins Pride of Valley
corn shipped in car consigned to Howard E. Jones & Co. as per
your invoice of the 25th instant, beg to advise that we drew
samples from this car which has arrived at Camden warehouses
and compared with sample you sent us of last year's pack
and there is as much difference as between night and day.
This corn is bitter, tough, sloppy, poorly filled and yellow
color. Sample of last year's corn shows up as a good
consistency and white color.
We therefore beg to advise that we cannot use this corn and
same is at Camden warehouses subject to your orders and
disposition. * * *
P. S.--We advised Howard E. Jones & Co. some days ago to send
on samples of this new pack before making any
shipments."
On
August 31st it wrote another letter in which it said, in
part:
"Beg to advise that we cut additional cans to-day in
Howard E. Jones & Co.'s office, of this lot, and found
two cans that were sour and balance of the cans cut with
nothing but water showing on the tops and no corn in sight,
which shows that same is very poor fill and sloppy.
Howard E. Jones & Co. has requested us to write you further,
as they state that they had a telephone conversation with you
to-day in reference to this lot of corn, and that you
requested us to make an offer on same.
We beg to advise that we would not have this corn at any
price, and furthermore, wish to advise that, as the car that
has just been shipped under date of the 25th instant
represents the contract we have with you for 10,000 cases, we
will not take any of this lot of corn and will consider the
contract canceled out. We bought standard goods, and
therefore we expected to get just what we bought."
But
prior to those two letters, on August 22, 1925, the Van Lill
Company had written Roberts that:
"We have had several cans of the Frederick City Packing
Company's last year corn which our salesmen have shown to
the trade, and they find it impossible to interest any of
their customers in this corn for the reasons that it is
sloppy.
They also find that sweetened corn of a good consistency and
superior pack is offered at lower prices than we can offer
this corn of inferior quality.
Now,
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