Weiss v. Sheet Metal Fabricators, Inc., 62

• Decision Date: 20 January 1955
• Docket Number: No. 62,62
• Citation: 110 A.2d 671,206 Md. 195
• Parties: Louis WEISS, Max Weiss, Abraham Weiss, and William Weiss, copartnership trading as Weiss Motor Company, v. SHEET METAL FABRICATORS, Incorporated.
• Court: Maryland Court of Appeals

Page 195

206 Md. 195

110 A.2d 671

Louis WEISS, Max Weiss, Abraham Weiss, and William Weiss copartnership trading as Weiss Motor Company, v. SHEET METAL FABRICATORS, Incorporated.

No. 62.

Court of Appeals of Maryland.

Jan. 20, 1955.

Rehearing Denied March 17, 1955.

David P. Gordon and Robert I. Hammerman, Gordon & Feinblatt, Baltimore, on the brief, for appellants.

Daniel S. Sullivan, Jr., Baltimore, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a judgment in favor of the appellants, Weiss Motor Company, for one cent damages in a case tried before the trial judge without a jury.

The agreed statement of facts is essentially as follows. The appellants are a partnership operating a large Ford agency in Baltimore City. The appellee, Sheet Metal Fabricators, Inc., is a corporation engaged in the metal fabricating business. At the trial below Gordon Bonner, a salesman, Raymond Jenkinson, manager of the stock department, and William Weiss, a partner, testified for the appellants. The gist of their testimony follows. Mrs. Bulah Flora, an employee of appellee, on February 24, 1953, telephoned Mr. Bonner, advising him that the appellee was about to buy a new stake bodied truck. It had a 1947 Dodge stake truck to trade in and she wanted a quotation at once on the truck which was needed on a job to replace the old truck which was to be traded. Bonner replied that as it was late in the day he would inspect the truck offered in trade at appellee's plant the next morning and then work up a price figure.

Accompanied by Jenkinson, Bonner went to look at the old truck at appellee's plant. He talked to Mrs. Flora and learned from her what special equipment was required, and that the truck would be needed at 3 P. M. the following day, February 26, 1953, if appellants' price was accepted. Bonner told Mrs. Flora that he would telephone her after returning to the office to get the prices for the several extras. Within a short time Bonner called Mrs. Flora and told her that the gross price would be $2,418.95. An allowance would be made on the old truck of $700.95 and the net price to the appellee would be $1,718. Within a short time Mrs. Flora called Bonner and said that in order to make the deal the price would have to be a little lower. After a discussion with Mr. Weiss, Bonner again called Mrs. Flora and quoted a reduced price of $2,358.95. After a short pause in the conversation, Mrs. Flora advised him that the appellants' offer was accepted. Thereupon, Bonner had his long hand draft of the quotation typed, using the revised figures as shown on appellants' Exhibit No. 1. This exhibit showed that the following was to be supplied:

'In reply to your inquiry we are pleased to submit our price on 1-1952 Ford-F-5-158' wheel base 12 ft. stake equipped with the following:

'(6)

'Clipper Six Engine

'P. A. Wipers

'Auxiliary Springs

'750 X 20 X 8 Ply Tires

'Oil Filter

'Directional Signal Front & rear

'Hot Water Heater

'R. H. Mirror

'2358.95 'We will accept in trade and allow you on your 1947 Dodge Stake 700.95 against our quoted price or a net difference of $1658.00. Maryland Sales Tax and transfer of tags are not included in the above quotation.'

Bonner delivered Exhibit No. 1 immediately and was handed appellee's purchase order, which is appellants' Exhibit No. 3.

The substantial part of the purchase order follows:

'Quantity Description Price

'Ford Truck--1 1/2T stake--158"' wheel base with Heater and defroster, directional signals, right hand mirror and 750-20, 8 ply tires.

'Net Price (including Trade In Allowance) $1658.00

'Delivery--3 P. M. February 26, 1953

'Quality: Materials will be subject to inspection at our plant. Rejects will be returned at our expense.

'Delivery: Delivery must be effected within reasonable time of date specified on order.

'Correspondence: An acknowledgment of receipt of this order is necessary. * * *

'Sheet Metal Fabricators, Inc.

'Approved Bulah Flora

'Ship To: Will pick up.'

Appellants installed the items listed on the purchase order on the only chassis of this description which they had in stock. They painted the stake body (which was purchased from another company as they had none in stock) red to conform with the chassis. The truck was ready for delivery at the specified time. The papers to effect the transfer of title were drawn but the appellee sent no one to pick up the truck.

A few days later Bonner telephoned Mrs. Flora and was told by her that there had been some mixup and Christian Klapproth, appellee's president and general manager, wanted further information about the truck. Jenkinson then took some sales literature to appellee's plant and left it with Klapproth. Jenkinson testified that he was not told to withhold action on the purchase order. A day or so later Klapproth called the appellants' sales room and left a message that he was cancelling the order for the truck. This message was confirmed by a letter dated March 5, 1953, from appellee to appellants, which stated: 'This will confirm our phone conversation cancelling our order no. 2551, dated 2-25-53, which was sent to you in error.' Appellants have made no effort to sell the truck to anyone else. Weiss testified that he had never talked to Klapproth on the telephone; that he never agreed to cancel the order for the truck; that the truck which was made ready was the only one of that type in stock and probably was the only one of that type in Baltimore City. The 1953 model Ford truck was not announced until some time later.

Mr. Klapproth and Mrs. Flora testified for the appellee. Their testimony follows. Klapproth is the president and general manager of the appellee corporation and Mrs. Flora is a stenographer in the office. It was Klapproth's responsibility to decide which bid was to be accepted. He did not at any time decide to accept the bid of the appellants, nor did he at any time authorize Mrs. Flora to sign the purchase order, nor did he subsequently ratify the purchase order. His instructions to Mrs. Flora were to get bids on Dodge, Chevrolet and Ford trucks. She did not know that Klapproth had also arranged to get a bid on an International Harvester truck and that the initial bid on that truck, which was the lowest of all, was on Klapproth's desk when she signed the purchase order with the appellants. She signed the order because she knew it was the general practice to give the order to the lowest bidder and the Ford did was the lowest of the three which she had obtained.

Mr. Klapproth was out of town when the purchase order was signed. He learned about it the same day and immediately called the appellants and told them 'not to consider that they had an order until he reached a final decision.' Shortly thereafter he notified appellants that he had decided not to give the order to them but to accept the bid of International Harvester, which was the lowest bid. On March 5, 1953, appellee sent to appellants the letter above quoted. In a letter dated March 25th to the appellants, Klapproth wrote that he had advised Jenkinson on February 26th 'to withhold any action on the purchase order.' Mrs. Flora did not have authority to sign a purchase order for a truck on her own initiative. She did have authority to sign purchase orders for office supplies.

Appellants contend that there was a binding contract between the parties which was not repudiated or breached by the appellee prior to passage of title and that they are entitled to a judgment in the amount of $2,358.95.

The trial judge found that Bulah Flora had the apparent authority to act for the appellee. He further found that the buyer, appellee here, notified the sellers, appellants here, of its intention to refuse to accept title to the truck, which amounted to a breach of contract, before the truck was finally and unconditionally appropriated to the contract by the appellants, with the assent of the appellee expressed or implied. As no damages had been proved, he entered judgment in favor of the appellants for one cent damages. From that judgment the appellants appeal.

The trial judge found that a valid contract was made and allowed the one cent damages. The defendant, appellee, did not appeal and, therefore, the finding that a valid contract was made is conclusive on this appeal. Lynch v. Kamanitz, 148 Md. 381, 385, 129 A. 362. The question here presented is one only of the amount of damages.

The appellee contends that Code 1951, Article 83, § 82, Uniform Sales Act, as applied by the trial judge, governs the instant case and as there was no difference between the market price and the contract price at the time the contract was repudiated, the damages awarded by the trial judge were adequate.

The appellants, on the other hand, contend that Code 1951, Article 83, supra, Section 81(1), Uniform Sales Act, applies here. That section provides: 'Where, under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods.' The question then arises as to whether...