Sullivan v. Boswell

• Court: Maryland Supreme Court
• Writing for the Court: BRISCOE, J
• Citation: Sullivan v. Boswell, 122 Md. 539, 89 A. 940 (Md. 1914)
• Decision Date: 04 February 1914
• Parties: SULLIVAN et al. v. BOSWELL.

89 A. 940

122 Md. 539

SULLIVAN et al.

v. BOSWELL.

Court of Appeals of Maryland.

Feb. 4, 1914.

Appeal from Circuit Court, Allegany County; Robert R. Henderson, Judge.

"To be officially reported."

Action by John A. Sullivan and others, trading as the Sullivan Bros. Coal Company, against Edward T. Boswell, trading as the Boswell Coal Company, with counterclaim by defendant Judgment for defendant, and plaintiffs appeal. Affirmed.

The court instructed:

Plaintiffs' third prayer: "The plaintiffs pray the court to declare, as a matter of law, that, under the pleadings and evidence in this case, the defendant cannot recover under his plea of set-off."

Plaintiffs' fourth prayer: "The plaintiffs further pray the court to declare, as a matter of law, that there is no legally sufficient evidence in the case to entitle the defendant to recover under his pleas of set-off."

Plaintiffs' seventh prayer: "The plaintiffs further pray that, if the court shall find from the evidence that the plaintiffs agreed to furnish to the defendant the entire output of their mines, and that the plaintiffs did not so furnish, and that defendant knew the same, and shall further find that the defendant could have gone into the market and purchased coal at the same price he agreed to pay the plaintiffs, that then the court shall say, as a matter of law, that the defendant suffered no damages, and the verdict must be for the plaintiffs."

The defendant specially excepts to the granting of the plaintiffs' first prayer, because there is no evidence in this case of facts which entitled the plaintiff to rescind the contract in this case on March 11, 1912.

Defendant's third prayer: "The defendant prays the court to instruct itself, sitting as a jury, that the measure of damages of the defendant's claim is the difference between the contract price agreed to be paid to the plaintiffs for the coal and the market price of the coal at the time and place of delivery thereof in accordance with the terms of the contract, to wit, f. o. b. cars at plaintiffs' mines at Eckhart, Md., not exceeding the plaintiffs' claim."

Defendant's sixth prayer: "The defendant prays the court to instruct itself, sitting as a jury, that, if the court find that under the contract it was the duty of the defendant to pay for the coal shipped to it in any month between the 20th and 25th of the following month, and if the court further finds that sometimes the plaintiff requested and received payment before the same was due, and sometimes after it was due, and if the court further finds that, after the defendant had neglected to make prompt payment as provided in the contract, the plaintiff nevertheless accepted the payments, and continued to ship coal under the contract, then the plaintiff waived the provision above set forth, and was not thereafter entitled to rescind the contract on account of previous delayed payment or payments."

The court lays down for its guidance as a jury the law of this case as follows'.

"If the court, sitting as a jury, shall find that the written contract offered in evidence was entered into between the plaintiffs and defendant in March or April, 1911, and that, in addition to the written terms, it was orally agreed between the parties at the time of signing the contract that the blank left therein for the maximum coal shipment was understood to mean the whole output of the plaintiffs' mine during the period covered by the written contract, then the term of said contract as to the times for payment for coal shipments was of the essence of the contract, and for a breach thereof the plaintiffs had the right to rescind the contract, and ship no more coal; but, if the court, as a jury, shall find that the plaintiffs from time to time accepted payments for coal after the stipulated times, and thereafter shipped more coal, then these are facts from which the court, as jury, may find that the plaintiffs had waived and lost the right to rescind for breaches of said term theretofore made, and the law is that they could not after such waiver, if such be found, recover the right to rescind for future breaches of said term as to payment without some notice to defendant that they intended thereafter to strictly enforce such term, and opportunity after said notice to the defendant to comply strictly with said terms; and if the court, as jury, shall further find that the plaintiffs, on or about March 12, 1912, received from the defendant the telephone message as recounted by John A. Sullivan in his testimony, and made the answer thereto given in his testimony, and thereafter, and without any further talk or correspondence, plaintiffs shipped no more coal at all to defendant, although requested so to do, then the court, as jury, is instructed that the plaintiffs had no right in that manner to terminate the contract, and cease shipping coal; and if the court, as jury, further find that defendant thereafter demanded the coal mined by plaintiffs up to March 31, 1912, and that the plaintiffs mined coal up to said date, but refused to ship more to the defendant, but sold the same to other persons than defendant, and that in the meantime the market price of the coal mentioned in the contract had arisen, then, even although the court, as jury, may find that the plaintiffs have not been paid for 2,376 tons of coal shipped prior to March, 1912, at $1.25 per ton, amounting to $2,971.50, still the defendant may recoup as against said unpaid bill, and the court, as jury, may deduct therefrom such damages, not exceeding the amount of the bill, as the court, as jury, may find it suffered, if any, by reason of the failure of the plaintiffs to ship coal up to March 31st, estimating the damages at the difference between the contract price of the coal and the market price t. o. b. cars at Eckhart, at the time the court, as jury, may find there were failures to deliver prior to March 31, 1912. And the court, as jury, is further instructed that, even if it find there was a verbal telephonic agreement between the parties on or about January 19, 1912, as to the plaintiffs selling and the defendant buying all the coal thereafter mined by plaintiffs, yet if the previous contract be found as set out in this prayer, there was no consideration for the second verbal contract; and therefore there is no legally sufficient evidence to support the plea of set-off in this case."

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Austin A. Wilson and Albert A. Doub, both of Cumberland (Jacob France, of Baltimore, on the brief), for appellants. George W. Lindsay and J. Royall Tippett, both of Baltimore (Richard B. Tippett, of Baltimore, on the brief), for appellee.

BRISCOE, J This suit was brought in the court of common pleas of Baltimore city by the plaintiffs, as the Sullivan Bros. Coal Company, miners and shippers of coal, at Eckhart, in Allegany county, Md., against the defendant, Edward T. Boswell, trading as the Boswell Coal Company, of Baltimore city, Md. The case was removed to the circuit court for Allegany county, and was submitted to the court below, sitting as a jury. From a judgment in favor of the defendant for costs, the plaintiffs have appealed.

The questions in the case arise upon demurrers to the several pleadings, and to the rulings of the court upon the prayers. There were no exceptions reserved to the rulings of the court on the admissibility of testimony.

The declaration as originally filed on the 28th of June, 1912, contained the six ordinary money counts, in assumpsit, to recover the sum of $2,971.50, the contract price for 2,370 tons of coal shipped by the plaintiffs to the defendant, under a contract dated the—— day of March, 1911, to be hereafter considered between the parties to the suit. An account showing the number of tons, the weight, price, and car load lots, was filed with the declaration.

To this declaration the defendant pleaded the two general issue pleas in assumpsit, and an additional plea of set-off. A demurrer to the defendant's plea of set-off was sustained by the court, with leave to amend, and subsequently, after various pleadings, the plaintiffs' demurrer to the defendant's amended plea of set-off was overruled, and replications were filed to the seven pleas, and issue joined on the replications. Thereafter, by leave of court, the plaintiffs amended their declaration by filing an additional count, alleging the terms of the contract, and declaring upon a settlement by way of compromise made on the 23d of May, 1912.

In this count, after setting out the contract, the plaintiffs in substance aver "that the defendant failed and refused to pay for the coal in accordance with the contract, and the plaintiffs threatened to bring suit upon the claim to recover the sum of $2,971.50 for the coal, which the defendant failed and refused to pay, and that thereupon, after negotiations by and between the parties, the claim as due from the defendant to the plaintiffs was adjusted, settled, and compromised, and that, by the terms of the adjustment, settlement, and compromise made by and between the parties on or about the 23d day of May, 1912, in consideration of refraining to bring suit, and of the delivery of the coal, the defendant promised and agreed to pay the sum of $2,422.60 in full settlement of the claim, provided the plaintiffs would draw promptly on the defendant for the sum of $2,422.60, with an executed release in full attached to the draft, and that the plaintiffs did thereupon promptly issue their draft upon the defendant for the sum of $2,422.66, with the executed release attached to the draft, but the defendant refused to honor the draft, and failed, neglected, and refused to pay the sum. of $2,422.66, as agreed upon in the settlement."

The defendant thereupon demurred to this additional count, and, the demurrer being sustained by the court below, the case was tried upon issue joined on...