Sumwalt Ice Co. v. Knickerbocker Ice Co. of Baltimore City

• Decision Date: 11 January 1911
• Citation: 80 A. 48,114 Md. 403
• Parties: SUMWALT ICE CO. v. KNICKERBOCKER ICE CO. OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

80 A. 48

114 Md. 403

SUMWALT ICE CO. v. KNICKERBOCKER ICE CO. OF BALTIMORE CITY.

Court of Appeals of Maryland

January 11, 1911

Appeal from Baltimore City Court; Thos. Ireland Elliott, Judge.

Action by the Sumwalt Ice Company against the Knickerbocker Ice Company of Baltimore City. Judgment for defendant, and plaintiff appeals. Reversed, and new trial awarded.

See also, 112 Md. 437, 77 A. 56.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.

E Allan Sauerwein, Jr., and Wm. S. Bryan, Jr., for appellant.

J. Leiper Winslow and Edward C. Carrington, Jr., for appellee.

BURKE J.

This is the plaintiff's appeal from a judgment in favor of the defendant entered in the Baltimore city court. The plaintiff is a foreign corporation engaged in the wholesale and retail ice business in Maryland, and the defendant corporation is a manufacturer of ice, and engaged in the wholesale distribution of both natural and artificial ice in Baltimore city and elsewhere. The plaintiff is not a manufacturer of ice; but depends upon its purchase from others to supply its customers.

On the 19th day of March, 1906, the plaintiff entered into an agreement with the defendant, whereby it agreed to purchase from it, and the defendant agreed to sell to the plaintiff, such quantities of ice as the plaintiff would require in its business from the 1st day of April, 1906, to the 1st day of April, 1908, at prices for each month specified in the contract. The platform prices for the month of June, July, August, and September, 1906, were $2.25 per ton. The contract contains three other provisions or conditions which must be considered on this appeal. First, the plaintiff agreed that it would not directly or indirectly either in the purchase or sale of ice deal with the American Ice Company, the Independent Ice Company, the Baltimore Heating & Refrigerating Company, the Crystal Ice Company, the Buena Vista Ice Company, or the Vacuum Ice Company, or any other persons, firm, or corporation similarily engaged, or hereafter to be formed during the term of this contract, for the purpose of manufacturing ice, in competition with the defendant, or in handling, in such wise, the natural product of ice, but this clause, it was agreed, was not to be so construed as to prevent the plaintiff from extending its business of serving ice as then conducted by it; secondly, that the plaintiff would not directly or indirectly sell to or interfere with the customers or trade of the defendant, that the defendant would not either of itself or through any person or persons natural or artificial and under its control sell to the customers of the plaintiff, or do anything to interfere with, injure, or divert in any wise the business of the plaintiff. On June 29, 1906, an agreement was entered into between the plaintiff and the Gardner Dairy Company, a corporation, whereby the plaintiff agreed to sell and deliver to that company, and it thereby agreed to take from the plaintiff such ice as it should require in its business at the price of $5 per ton delivered in amounts not to exceed 20 tons of ice per day from the date of the agreement, and until the Gardner Company should complete its own ice manufacturing plant then in course of construction. The declaration in this case sets out the facts which we have stated, and which are established by the evidence. It then alleges "that the defendant, in utter disregard of the rights of the plaintiff and of its contractual obligations to the plaintiff, did wrongfully, improperly, and maliciously notify the said plaintiff to desist from selling ice to the said Gardner Dairy Company of Baltimore city, and to disregard and break the said agreement so entered into between the said plaintiff and the said Gardner Dairy Company of Baltimore city, and did wrongfully, improperly, and maliciously threaten the said plaintiff that, if it did not so desist and so ignore and violate its said agreement, it, the said defendant, would refuse to sell and deliver to said plaintiff any more ice under its said agreement with the said plaintiff. And the plaintiff further says that at the time of the issuance of this threat by the said defendant body corporate there was a great scarcity of ice not only in the city of Baltimore, but throughout the Middle Atlantic states generally, and the plaintiff being apprehensive that, if it did not comply with the wishes of the said defendant body corporate and if the said defendant should carry out its threat, the entire business of the plaintiff would be thereby ruined, did notify the said Gardner Dairy Company that it would break its said agreement and of the reason therefore, and thereupon the said Gardner Dairy Company, being unable to secure ice elsewhere, did enter into an agreement with the defendant body corporate to purchase of it 500 tons of ice at the price of five dollars ($5) per ton at the platform of the defendant body corporate, under which agreement the said Gardner Dairy Company did actually purchase 487 and a fraction tons." The declaration further alleges: "That the action of the said defendant in causing the plaintiff to break the said contract with the said Gardner Dairy Company of Baltimore city was with the desire and intent on the part of the said defendant to injure the said plaintiff and to obtain a benefit for itself by selling 487 and a fraction tons of ice at five dollars ($5) per ton at its platform to the Gardner Dairy Company of Baltimore city rather than at the price of $2.50 per ton, which was the prevailing price at that time to the plaintiff, by which unlawful and malicious action on the part of said defendant the plaintiff has been greatly damaged."

During the course of the trial in the lower court, nine exceptions to rulings upon questions of evidence were reserved by the plaintiff, and at the conclusion of its case the court instructed the jury that "under the pleadings and upon the evidence" in the case the plaintiff was not entitled to recover, and that the verdict of the jury must be for the defendant. This ruling constitutes the tenth exception. It raises no question as to the legal sufficiency of the evidence introduced in support of the plaintiff's case. As to that the prayer is too general and indefinite, and in the form in which it was granted must be treated only as an attack upon the sufficiency of the declaration. Under a prayer referring to the pleadings, the legal sufficiency of the declaration may be raised and determined. Leopard v. Chesapeake & Ohio Canal, 1 Gill, 222; Baltimore City Passenger Railroad Company v. Wilkinson, 30 Md. 229; Ward v. Schlosser, 111 Md. 528, 75 A. 116.

We have no doubt that the declaration sets out a legal cause of action. The facts alleged disclose an actionable tort committed by the defendant upon the rights of the plaintiff resulting directly in substantial damage to it. In Acker Merrall & Co. v. Magaw, 106 Md. 536, 68 A. 17, we said: "A person commits a tort, and renders himself liable to an action for damages, who commits some act not authorized by law, or who omits to do something which he ought to do by law, and by such an act or omission either infringes some absolute right, to the uninterrupted enjoyment of which...