Underhill v. Buckman Fruit Co.

Decision Date02 April 1903
CourtMaryland Court of Appeals

Appeal from Court of Common Pleas; Henry D. Harlan, Judge.

Action by Joshua J. Underhill against the Buckman Fruit Company of Baltimore. From a judgment in favor of defendant, plaintiff appeals. Reversed.


W.S Bansemer and Richard B. Tippett, for appellant.

Randolph Barton, Sr., and Randolph Barton, Jr., for appellee.


This is a suit brought by the appellant against the appellee company to recover damages for the alleged breach of a contract. The appellant is a resident of the state of California, but at the time of the alleged breach was engaged in the oyster and fruit business in Baltimore City, and his principal business was to sell to the retail trade. The appellee is a fruit company trading as the Buckman Fruit Company, and was engaged in the business of importing foreign fruit, including bananas, to the city of Baltimore, and sold to the trade known as "jobbers." The contract, which is the basis of this controversy, is dated Baltimore, April 28 1897, and is as follows: "I hereby agree to furnish J.J Underhill bananas to the extent of four hundred (400) from each steamer during the months of May and June of each year at the following prices, namely, first, $1.10 per bunch eight hands .80 per bunch; seconds, .60 per bunch; thirds, .40 per bunch. And the remainder of the year, that is ten months, prices are to be the same as originally agreed upon, namely, firsts, $1.00 per bunch; eight hands, .75 per bunch; seconds, .50 per bunch; thirds, .35 per bunch. It is further agreed and understood that this agreement is to remain in full force one year with privilege of renewal for another year, or as long as the said J.J. Underhill does not advance, loan or aid any one in the importing bananas, also the number of bunches not to exceed four hundred (400) bunches out of each cargo. And in consideration of the above agreement the said J.J. Underhill agrees not to loan, advance or aid any individual or corporation in the importing of bananas into this market. [ [Signed] Buckman Fruit Co., per C.C. Buckman, Pres't." It appears that, according to the terms of the contract, it was renewed, by agreement of the parties, for the period of one year, beginning on April 28, 1898. Subsequently, on the 3d of March, 1899, the defendant company notified the plaintiff by letter, and for reasons therein stated, which will hereafter appear, that it considered the contract with him, dated April 28, 1897, at an end. The declaration alleged that the defendant has ever since the 3d of March, 1899, refused to comply with its agreement made with the plaintiff, and although he has notified the defendant of his renewal of all of his rights under the agreement for another period of one year, and of his intention to resume all of his rights of renewal under the agreement, the defendant has denied his right of renewal under the contract, and refuses to be further bound by the same, although the plaintiff has in all respects performed his part of the agreement, and is ready and willing to continue to do so, and by reason of this breach the plaintiff has suffered great loss and damage. The defendant pleaded to the declaration, "Never promised as alleged, and not indebted as alleged;" and, the case, upon trial, resulting in a verdict for the defendant, the plaintiff has appealed.

The questions in the case arise upon a single exception reserved by the plaintiff to the rulings of the court in the granting of the defendant's prayers which were offered at the close of the plaintiff's case. The defendant's prayers, as granted, withdrew the case from the jury; and the question here is, as they were, in effect, a demurrer to the plaintiff's evidence, were they properly granted by the court? We cannot concur with the court below in the instruction granted in this case, and we think there was error in the rulings of the court upon both prayers.

The defendant's first prayer ruled, as a matter of law, that there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and the verdict must be for the defendant, because the plaintiff had failed to prove the arrival or presence of any steamer after the alleged breach of the contract on March 3, 1899, up to and including the 28th of April of the same year. It will be seen, upon an examination of the record, that there was evidence tending to show the time and dates of the arrival in Baltimore of the company's steamers. The witness H.W. Underhill testified that the company always had one, sometimes more, and sometimes three, a week. The letter of March 3, 1899, of the defendant's...

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