Williams v. Woods

• Decision Date: 28 June 1860
• Parties: OTHO H. WILLIAMS, survivor of JOHN B. HOWELL, v. HIRAM C. WOODS, Jr., and JOHN C. BRIDGES.
• Court: Maryland Court of Appeals

16 Md. 220

OTHO H. WILLIAMS, survivor of JOHN B. HOWELL, v. HIRAM C. WOODS, Jr., and JOHN C. BRIDGES.

Court of Appeals of Maryland.

June 28, 1860

A broker having made a contract of sale may authorize his clerk to make and sign an entry or memorandum thereof, under the broker's direction and in his presence, so as to bind the parties named in the contract.

A broker's clerk may reduce the contract to writing and sign the same where he exercises no discretion, but merely acts ministerially, or mechanically under the direction and supervision of his employer, the broker.

An agent may perform a mere ministerial or mechanical act by a subagent or deputy, even where he cannot delegate any portion of his authority requiring the exercise of the least discretion.

As a general rule, written instruments are to be construed by the court alone according to the meaning of the language therein employed, without the aid of parol proof to explain the meaning and intention of the parties thereto.

But in a mercantile transaction, where the terms of a written instrument are technical or equivocal on its face, or are made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain their meaning.

In such case the evidence of usage and surrounding circumstances, is for the jury, and the province of the court is to instruct them conditionally or hypothetically, what should be the proper construction or interpretation of the instrument, as they may find the evidence to support or not the purpose for which it has been offered.

An instruction was granted, to the effect, that a certain entry is a sufficient memorandum in writing of a contract to bind the defendant, provided, the jury find that it " either expressly or according to the sense and signification of its language and figures, under the established usage and custom of merchants in the city of Baltimore, at the time, & c., represented truly and fully the terms of, and parties to, the contract of sale." HELD:

That this instruction was erroneous, because it authorized the jury to construe the entry, or memorandum, without any absolute or conditional construction thereof by the court.

The presumption of law, in the absence of evidence to the contrary, is, that a sold note, or memorandum of sale, executed and delivered to a purchaser, was so executed and delivered on the day on which it bears date.

The memorandum of a sale of a lot of coffee, showed on its face that no time for the payment of the price was stated therein, but the plaintiff had offered uncontradicted evidence tending to prove that by mercantile usage the credit on a sale of coffee is six months, where there is no stipulation to the contrary. HELD:

That a prayer, by the defendant, to the effect that this entry was insufficient, if the jury find that the contract made was a sale on a credit of six months, is erroneous and was properly rejected, because it ignores this proof of usage, the truth of which the court was bound to assume when deciding upon the prayer.

An entry of a sale of coffee not stating any credit, is not an insufficient note, or memorandum, for want of a proper, or any specification of the length of credit, when, by mercantile usage, such a sale is a sale on six months' credit; the entry, in connection with the usage, is an entry of a sale with six months' credit.

A sold note, or memorandum of sale, made out and delivered to the purchaser, by the broker, after the vendor had refused to ratify the sale, and after express notice of such refusal had been given, both to the broker and purchaser, is not a sufficient note or memorandum of the bargain to bind the vendor.

Where a broker has authority to make an absolute sale, not subject to the approval of the vendor, (his principal,) and within the scope of such authority, makes such a sale, it is valid whether the broker was influenced in making it by the approbation of the vendor's clerk or not, or whether the sale was afterwards objected to by the vendor or not.

A bargain for the sale of coffee, upon the terms, that the paper therefor should be satisfactory to the seller, is not sufficiently evidenced, under the Statute of Frauds, by a note or memorandum which does not mention whether the paper for the price should be satisfactory to the seller or not.

When the evidence relied on, to sustain the facts which are the basis of a prayer, is in conflict, or inconsistent, with other evidence offered by the opposite party, in relation to the same facts, the prayer should not be refused merely because it does not mention or notice the opposing or conflicting evidence.

Where there is conflicting, or inconsistent, evidence, in relation to the same matter, either party has the right to ask the court to instruct the jury what should be the legal effect of their finding that the facts which are made the groundwork of his prayer are true.

In an action, by the purchaser, to recover damages for the non-performance, by the vendor, of a contract for the sale of a lot of coffee, there was no proof that the coffee was to be paid for, either by satisfactory paper or by cash, on any particular day, or at any specified period of time. There was no delivery, or offer of delivery, by the vendor, but, on the contrary, he very promptly, after being informed of the sale refused to comply with the bargain. HELD:

That the plaintiff was not bound to prove, at the trial, in order to entitle him to a verdict, that at, or before the time of suit brought, he had in his possession, or under his control sufficient money or a sufficient amount of paper satisfactory to the seller, to cover the price of the coffee, ready to be handed over to the vendor simultaneously with the delivery of the coffee.

In an action for not delivering goods, where no time is fixed for the completion of the contract, the damages must be calculated from the period at which the defendant refuses to perform it; such refusal leaves no locus penitentiæ to the defendant, and the plaintiff cannot treat the agreement as any longer subsisting.

Where, in an action for the non-delivery of a lot of coffee, the defendant refused, on a certain day, to ratify the sale and deliver the coffee, and the plaintiff at that time had not paid, or offered to pay, any part of the price, such refusal constitutes a breach of the contract at that time, and the measure of damages is the difference, if any, between the price of a lot of coffee, of the same quality and quantity, at the time of such breach, and the price at which the same had been sold.

APPEAL from the Superior Court of Baltimore City.

Assumpsit, brought on the 10th of September 1853, by the appellees, partners, trading as Woods, Bridges & Co., against the appellant and John B. Howell, trading as William Howell & Son, to recover damages for non-compliance with an alleged contract for the sale of a lot of coffee, part of the cargo of a vessel called the " Clintonia Wright."

The declaration contains five special counts. The first alleges that the defendants, on the 26th of August 1853, bargained and sold to the plaintiffs 1244 bags of coffee, containing 200,000 pounds, at 9 3/4 cents per pound, to be delivered immediately thereafter, and to be paid for by the plaintiffs to the defendants in promissory notes or bills of exchange satisfactory to the defendants, and payable in six months after the date of said delivery--averment, that the plaintiffs have always been ready and willing to accept the goods and pay for the same at the price and in the way aforesaid, of which the defendants had notice--breach, refusal and neglect to deliver. The second count alleges that the coffee was to be delivered at any time the plaintiffs might request or demand, to be paid for in notes, & c., payable six months after the 26th of August 1853. The third count alleges that the coffee was Rio coffee, to be delivered within a reasonable time thereafter, to be paid for in notes, & c., payable six months after the 26th of August 1853. The fourth count alleges that the coffee was to be delivered in a reasonable time thereafter, to be paid for by the plaintiffs on the delivery thereof. The fifth count alleges that the coffee was to be delivered within a reasonable time thereafter, and to be paid for six months after the 26th of August 1853.

Plea, non assumpsit.

Subsequently Howell's death was suggested, and the case was prosecuted against the appellant, Williams, as surviving defendant.

Exception. The evidence on both sides is very voluminous, and need not be stated at length. Its purport sufficiently appears from the arguments of counsel, the opinion of this court, and the following prayers, on both sides, which are given in full.

The plaintiffs offered the five following prayers:

1st. If the jury shall find, from the evidence, that the witnesses, White and Elder, during all the months of August and September 1853, were engaged as partners in Baltimore under the firm of White & Elder, in the business of merchandise brokers, and sellers of merchandise on commission, and that on the 26th of August 1853, the said firm of White & Elder had authority from William Howell & Son to sell for them the coffee mentioned in the declaration, at a certain price, and upon certain terms, and did, in fact, on said 26th day of August, in pursuance and execution of their said authority, and within the scope thereof, contract, on behalf of said William Howell & Son, with the plaintiffs, to sell them the said coffee, at the price and upon the terms for and upon which said White & Elder were as aforesaid authorized to sell it, by said William Howell & Son. And if the jury shall further find that the book, produced in...