59 Md. 557 | Md. | 1883
delivered the opinion of the Court.
This is an action of replevin brought by the appellee against the appellants- to recover the hull and masts of the steamship Falcon. The undisputed facts are as follows: The vessel was lying at Baltimore, and Frederick Robert, President of the Eastern. Transportation Line, went to Baltimore to examine the boat; there he met Perretz, the agent of the owners, Messrs. Winternitz & Sons, with whomhe went to examine the hull, which was a wreck. Perretz named a price which Robert declined; and, on being asked to make an offer, Robert offered $400.00. Perretz then took him to the owners, and he there said to the owners: “ Gentlemen, I will give you $400.00 for that hull delivered in Baltimore,or $500.00, delivered in New York; I am in no particular hurry for the hull and will give you until the 15th of February to deliver it.” They then talked of the machinery and telephoned somebody to know what it would cost to take it out and store it, when, as it was nearing train time, Robert said he was going, “and if he found a letter on his desk next morning accepting his offer of $400—-he would leave the offer open till that time—he would take it.” During the examination of the hull, Robert told Perretz, if he purchased the hull, he should cut off all above the upper deck. On their way to the train, (to which Perretz accompanied Robert), Perretz asked Robert if he cut the vessel, down “will you let me
P. S.—Should you learn of any one that would purchase boiler and engine, refer them to me. Answer me, please, at your earliest convenience.” •
To this letter Robert replied as follows: “New York, Dec. 15th, 1880. My Dear Sir:—Your esteemed, favor of the 14th inst. is at hand accepting my offer for the hull of the steamer Falcon. I understand the barch line mentioned in your letter to he that of the main deck, and that the masts go with the hull. I will request Mr. Bolander to draw up the usual contract for us, it is part of his business, and he can make n,o extra charge for the same. The terms I understand to he cash on delivery, either in New York, or Baltimore. With regards to Messrs. Winternitz & Sons, I am yours, truly.” Fred. Robert, Pres’t.
Mr. T. B. Perretz, Baltimore, Md.
T. B. Perretz.
To this Mr. Robert replies, “ Few York, Dec. 16, 1880. Dear Sir:—Yours of the 15th is at hand and contents noted. We are perfectly willing you should cut off and retain the wood and iron on hull of Falcon, above the main deck, only stipulating if you take any that you take all off. If in doing this the hold of the masts to the hull is too much wrecked to be safe, I will receive them laid on the deck. Yours, truly.” Frederick Robert, Pres’t.
P. S.—I think you had perhaps better leave the stem and-standing for about four feet above the deck. F. R.
On the 18th of Dec., 1880, Perretz writes, “Dear Sir:— Yours of the 16th inst. to hand, contents lean hardly understand ; do you mean for me to have that work done for you? if so iimit me to a price, and to whom you would like me to give the job ? tell me exact how much to cutoff, and how high to leave at the stem,” all the off fall I will take, such above the barch line. Awaiting an early reply with instruction, I remain, very respectfully, yours,
T. B. Perretz.”
On the 20th Mr. Coffin, Mr. Robert's secretary, writes that his letter had been received, and Mr. Robert would write the next day “about the work, and in the meantime you are to do nothing.”
The next letter Perretz writes, he only says, “would you object for me of having any caulking done on the lower part of the hull, if I should find it necessary in order to bring her safe to New York. She might be dry on the side, if so limit me, to what extent, by return mail and by so doing oblige, respectfully yours.” T. B. Perretz.
Mr. Robert replied through his secretary, on the 80th Dec., that “ he does not feel authorized to allow any repairs or caulking done to the hull.”
Subsequent to this correspondence, and without notice to Mr. Robert, Winternitz & Sons sold the wreck Falcon, to the appellant, Cheney, on the 11th of Feb., 1880. Cheney having informed Robert that he had purchased, Robert (through Bolander, the agent who had brought him and Winternitz & Sons into treaty), on Feb. 15th, tendered the $400, the price for the Baltimore delivery—which being-refused, this replevin was sued out.
This is a possessory action, and it is necessary that there should he a concurrence of all the elements of a contract, not only for the passage of title, hut to give the right to immediate possession to the vendee. To effect a sale it is only necessary that the parties fully agree, with respect to a thing capable of identification, that for an agreed price the title to the thing shall pass from vendor to vendee. If it he sold for cash, or on credit, with agreement that possession shall not he given tillprice paid, the vendor has a lienfor his price, and nothing hut tender or actual payment can give the right to possession. 1 Parsons on Contracts, 519, 524, 525-6. The effect of a complete contract of sale is, as very clearly stated by Baron Parke in Dixon vs. Yates, 5 Barn. & Ad., 540, cited by appellee, “to vest the property in the bargainee ; hut there is an element here, not involved in that case, namely, that the price was to he paid as a condition for delivery of possession, and the right of possession accordingly, depended on payment or tender. It is a very common thing to buy and sell by letter. In such cases the correspondence contains the contract, and it is for the Court to construe the contract as it is extracted from the correspondence. Eliason vs. Henshaw, 4 Wheaton, 225 ; Carr vs. Duvall, 14 Peters, 77; Bonnewell vs. Jenkins, L. R., 8 Ch. Div. 70 ; Prop’rs, Eng. and For. Credit Co. vs. Arduin, L. R., 5 E. and I. App., 64;
Perretz’s first letter, dated 14th Dec., 1880, distinctly accepts Robert’s offer, made orally to Winternitz & Sons, in the presence of Perretz, with the additional conditions, suggested by him to Robert in their conversation on the subject. Comparing that letter with the proof respecting the oral interviews, we find it substantially embodies the conditions upon which the sale was to he made. Robert’s-reply on the next day acknowleged Perretz’s letter as an acceptance of his offer as made.. He suggests no deviation as having been made by Perretz, nor makes any qualifications himself. He simply says he has received his letter-accepting his offer, proceeds to say what he understands Perretz to mean by “ harch line,” and that he understood the masts to go with the hull—showing his confidence, that, they had reached a definite understanding, he says he will direct Mr. Bolander to prepare the formal contract. In Perretz’s next letter he makes no objections to Robert’s, interpretation of his meaning in the use of the term “harch line,” and expressly says “of course the masts go with the hull.” The reference by Robert to the preparation of a formal contract, cannot negative the idea that, the parties had already bindingly agreed on the matter,, and so fully understood. In Bonnewell vs. Jenkins (already cited) the Judge says that a long series of cases has established, that reference to a future contract, is not enough to negative a present one. Reference is there made to Crowly vs. Maycock, L. R., 18 Eq., 180. We think those letters establish a-contract between the parties from which neither had the right to recede, without liability for breach of it. The distinct recognition, in Perretz’s second letter of Robert’s expressed understanding of what Perretz. meant by what he said in his letter of acceptance, made that letter, as explained by Robert, the contract of the parties. In Perretz’s second letter he proceeds to explain
We cannot regard the objection pressed by the appellants’ counsel, to the granting of the plaintiff’s prayer and the refusal of the appellants’ first prayer, as sound. He insists there is no evidence that the plaintiff bought. We think there is. Perretz’s letter accepting Bobert’s verbal .offer, addresses Bobert as “President of the Eastern Transportation Line, New York,” and being the first letter after the personal interview, it would seem as if Bobert had told him whom he represented. Throughout the correspondence, Perretz so addresses Bobert; and Bobert in his second letter, dates-it from the office of the company. In Perretz’s second letter, in the body of it, he recognizes the company as the purchaser by saying he hoped he had not asked “any thing of value to your company.” We can not say, therefore, there is no evidence that Bobert was buying for the plaintiff with the knowledge of the vendors.
Appellants’ counsel further contended that replevin did not lie because there was a tenancy in common, in respect to the hull and the machinery; and that the only remedy
In this case the vessel was a wreck, and was no longer to be used as a steamship. So long, of course, as the boat was plying as a steamship, the hull and machinery would have been inseparable, except at the will of the owner. A fieri facias for illustration could not have taken the machinery from the hull, because it would have involved the destruction of the steamship. But here, the boat being no longer useful as a steamship, the will of the owner
Under the view we take of the correspondence and its effect, the second prayer of the defendants has no basis of' fact upon which to rest.
The rejection of the third and fourth prayers of the defendants is fully justified in the want of legally sufficient proof to sustain the theory upon which they proceed. If the defendant Cheney was induced hy the plaintiff’s agent, Robert, to buy the hull and machinery of the Ealcon hy suggestions respecting the same, and that he should do so, and without information that the plaintiff had bought the hull, and there was any proof to show that the plaintiff' had authorized Robert to waive any rights they had secured hy their contract of purchase, of course, the plaintiff would he estopped as against the defendant Cheney. But as we read the proof, there was a failure to lay a sufficient foundation for the putting of such question to the jury. The only testimony hearing upon this question is the respective statements of Robert and Cheney. Robert-says, that on the 11th of January he first saw Cheney and had a conversation, in which Cheney asked about the machinery of the Ealcon, which witness suggested would he useful to him. Cheney then inquired about the hull, and told Robert that Perretz said he had not sold the hull to the plaintiff, to which Robert replied that was a mistake, “that he had -a written contract for the hull and was going to have it.” Cheney then inquired if he bought-the engines how he could get them to Hew York. Robert then said, “ you had best go to Baltimore; if you buy the engines, I will see if I can malee an arrangement so you can take title to the whole thing, and bring it to New
On examination-in-chief, Cheney said he had an interview with Robert between the 10th and 15th of January, in which Robert said he would “ like to have the hull; if you can use the machinery perhaps we can make a trade ; you had better go down and see it, and if you can make a trade with these gentlemen for the whole ship, just as she is, and bring her to New York, I will take the hull and make a barge of it. Witness asked what he would allow him for the hull, and he said $500. Witness did not understand Robert to profess to have bought the hull; witness would not have come to Baltimore if he had.” Witness said he made his contract in consequence ■of Robert’s suggestion, but there was no agreement that he would let him have the hull for $500. On cross-examination, witness was asked, “ Did you not say to Mr. Robert in your first conversation, that you wanted to know what he had done with the Falcon in Baltimore ? ” and answered “I do not recollect.” On being pressed if he would swear he did not so ask, said, “ he would not swear it.” Witness further said “he would not swear he did not ask Mr. Robert in the first interview what he had done with the Falcon in Baltimore,” and further said
The fourth prayer was intended to declare, that as against the defendants, under our statute, the sale to the plaintiff carried no title, for want of bill of sale, acknowledgment and record; unless the defendants purchased with knowledge of plaintiff’s prior purchase. The proof did not warrant this instruction, and it was properly refused. Eobert states expressly, that he told Cheney he had bought the hull, and afterwards upbraided Mm for-buying, when he had told him he had bought. This is not positively contradicted by Cheney, as before stated, and the rule applied to the third prayer, must also be applied here. Taking this view, the questions of evidence presented in the other bills of exception become unimportant. The judgment will be affirmed.
Judgment affirmed.