Burt v. Myer, 71 Md. 467

Burt v. Myer

71 Md. 467 | Md. | 1889

Bryan, J.,

after stating the case as above reported, delivered the opinion of the Court.

It was competent for the jury to find that the defendants had made the contract for dealing in wheat, which is stated in the plaintiff's first prayer, and that they had broken it in the manner therein stated. The questions were fairly left to them by this prayer. It was also competent for the jury to find that the contract for the purchase of wheat by the defendants for the plaintiff was correctly set forth in the written correspondence between them, and that there was 210 other contract resp>eetiiig the manner in which the dealings in wheat should be carried on, and that they fulfilled the contract on their part, and that in accordance with plaintiff’s letters they had applied the money, which the plaintiff furnished them, to the payment of the losses and expenses incurred by him. In other words, the jury might find that the letters contained the only contract, and that the defendants had performed their part of it. These questions ■were fairly left to the jury by the defendants’ second prayer. The writte2i correspondence contains an authority to the defendants from the plaintiff to apply the price of the corn to his credit in the dealings between them, and shows the application by defendants. Plaintiff’s letter, September 13th, 1885, and defendants’ letters, September 15th, 1885, and September 21st, 1885, and plaintiff’s letter September 22d, 1885. So, on the *504hypothesis of the defendants’ second prayer, the amount due for the corn was settled. The jury were instructed by the plaintiff’s thirteenth prayer, that if they found contrary to this hypothesis they should give the plaintiff a verdict for the price of the corn. The plaintiff’s second and third prayers maintain the same view of the contract between the parties as the first. The great contest in the case was about the real nature of this contract. There was evidence which would sustain either of the conflicting theories on the subject, and the result of the controversy depended upon the prevalence of the one or the other of them. The money of the plaintiff was placed in the hands of the defendants upon a contract of some kind; and it cannot be rationally inferred from the proof in the cause that any other contract existed except one of these two just mentioned, It is true that where there is a failure to prove a sjoecial contract, the law will imply a contract by the parties to do what ex cequo et bono they ought to do; but this implication must be a reasonable deduction from the evidence, and it cannot be made, when the evidence tends to one of two diverse special contracts, and to no other result. If the contract and dealings were truly represented by the written correspondence in evidence, there is another reason why the plaintiff could not recover, besides that mentioned in the defendants’ second prayer, and that is, that all these dealings were gambling contracts, which come under the condemnation of the law. Stewart vs. Schall, 65 Md., 289. This point is effectively made in the defendants’' fourth prayer. The plaintiff’s, fourth, fifth, sixth, seventh and eighth prayers leave out of view the evidence which tended to prove this feature of the case, and were therefore properly rejected. It may be said, moreover, that they all disregard the evidence in the twelfth bill of exceptions, that in the statement of November 2nd, 1888, the date, September 16th, 1886, as *505applied to a purchase of wheat was a clerical error, and that September 15th, 1886, was the true date. And the fifth and sixth prayers misconceive the contract between the parties as shown by the correspondence, which is the only evidence on this particular point. The defendants' letter of September 11th, (Saturday) offered to give the plaintiff a half interest in the purchase of ten thousand bushels of wheat at 87|- on that day; on September 13th (Monday) defendants write to plaintiff that the market was a little lower than on Saturday, and say: “We will, however, watch it closely, and endeavor to buy you in 5,000 at less than 87£; if, however, the market continues to strengthen, and we cannot buy for you less than 87-g-, will enter up 5,000 of that already purchased, for your account.” The plaintiff, on the thirteenth of September, acknowledges the receipt of the letter of the eleventh and says: “I am willing to defer to your judgment as to the best probable time to buy wheat and enclose my check.” On the fifteenth of September the defendants inform the plaintiff that they have purchased for his account 5,000 (meaning five thousand bushels of wheat) at 87, being at a less price than the purchase of September eleventh. To this letter the plaintiff replied as follows: “Dear Sirs: — I don't know but that you are showing more solicitude for me than yourselves, in the matter of the wheat option. I am content to leave the thing with you, to use your judgment, and am satisfied that you will do your best to make a successful deal.

Yery truly yours.”

It is impossible to say that these letters disclose such a contract as is set up in the prayers in question.

There were sixteen bills of exception to the evidence. We have carefully examined" them and find no error. Moreover, the admission or rejection of the evidence embraced in these exceptions would not affect the decisive question in the case; that is, whether the contract *506was such, as maintained by the plaintiff, or such as the defendants allege.

(Decided 17th December, 1889.)

Judgment affirmed.