| Md. | Mar 26, 1878
delivered the opinion of the Court.
The declaration in this case contains two counts; 1st, that the defendants’ testator in his life-time converted to his own use, or wrongfully deprived the plaintiffs of the use and possession of certain chattels, that is to say, one steam engine, and one steam pump; and, 2nd, that the testator in his life-time seized, took and carried away, the chattels in the first count mentioned, and converted them to his own use. The plea was, that the said testator did not commit the wrongs alleged.
At the trial there were two bills of exception taken by the plaintiffs ; one to ruling on a question of evidence, and the other to rulings on the prayers offered for instruction to the jury.
1. As to the first exception. — The plaintiffs produced -a witness by the name of Reynolds, an engineer, who had been an agent of the plaintiffs, by whom they proved, that in the summer of 1870, he made a contract for the plaintiffs with one Lewis Stow, by which the plaintiffs were to put up, on the premises of Stow in the city of Baltimore, an engine worth $3000, which was to be paid for at certain times, provided it was satisfactory to Stow. He also proved that the engine was never made satisfactory to Stow, and that he put up a steam pump and heater, of the value of $250, upon the same conditions that the engine was furnished. This machinery was put up in the fall of 1870. The witness further proved that the plaintiffs were to own the machinery thus put up until accepted and paid for by
At this stage of the proof, the defendants moved the Court to exclude the oral evidence given by the witness in regard to the terms of the contract; and that the terms of the contract should he ascertained exclusively from the written correspondence of the parties; and the Court so ruling, the plaintiffs excepted.
The correspondence in relation to the contract, consists of a letter from Stow of the 23rd of July, 1870, and a letter from the plaintiffs of the 3rd of August, 1870. In the former, Stow informed the plaintiffs that he would accept the proposition of Reynolds, the agent, for the engine, pump and heater ; the same to he built, delivered and set up on the premises of Stow, at the expense of the plaintiffs, at the price mentioned; — “ the said engine to he run on 30 days trial, and to give perfect satisfaction.” In consideration of which, Stow agreed to pay $1000 in cash at the expiration of the 30 days, (if the engine proved satisfactory, and if not, to he made so, or moved at the expense of the plaintiffs,) and two notes of one thousand dollars each, at 6 and 8 months from the date of cash payment, with interest. In response to this proposition, the plaintiffs said, by their letter of the 3rd of August, 1870, that they could furnish the engine in thirty days, and would deliver and put it up, as per letter of Stow of the 23rd of July, 1870, for $3,000; — the notes to be 4 and 6 months, instead of 6 and 8 months. On the receipt of this letter of the 3rd of August, 1870, Stow informed the plaintiffs that he was ready for the engine; and the
These letters, being identified as the correspondence between the parties, by the plaintiffs’ own witness, must be taken as the written evidence of the contract. Indeed, there is no question in regard to the genuineness of the letters, nor is it denied that Reynolds had full power to make the contract evidenced by them. But it is contended that they do not express all the terms of the contract, and that it was competent to prove by oral evidence that if the engine was not made satisfactory to Stow, and not accepted by him, it was to remain the property of the plaintiffs, with the right to take it away whenever they might think proper to do so.
This extrinsic proof is of no subsequent or collateral agreement; but of what is said to have been the agreement of the parties before it was attempted to be reduced to writing in the form of a correspondence. And as the parties agreed at the time to reduce their understandings to writing, in such terms as to import a contract, without ambiguity, it must be presumed, and that conclusively, that such writing expresses the entire contract; and all oral evidence of previous colloquium or understandings of the parties, must be excluded. The proof offered was not of a matter simply collateral to the contract of purchase, as contended by the plaintiffs, but would form part of the principal contract itself; and if there be a conflict or repugnancy between the written evidence and the oral evidence offered, or if the latter, not being collateral to the principal contract, add to or vary the terms of the written contract, it must be excluded. Here, the letter of Stow of the 23rd of July, 1870, evidences the terms upon which the engine was furnished, so far as the contract was executory on the part of the plaintiffs; and those terms were that the engine was to be run on 30 days trial, and to give perfect satisfaction. If, after thirty days trial, Stow was
2. As to the second exception. — The plaintiffs then proved by the witness Eeynolds, that the engine and pump were put up in the fall of 1870, and that they were retained in the possession of, and used by, Stow until January, 1874, when he transferred or assigned them to the defendants’ testator, by written assignment. The witness described the engine, and testified that it never did work to the satisfaction of Stow; hut he says he had talked with Stow in regard to payment, and expected him to pay for the engine and pump, but supposed that it was not convenient for him to do so. He says that he had supposed that Stow would pay, and that was the reason why the engine was not removed ; that Stow promised to pay for it, though he never said that he wras satisfied with it, and never accepted it.
The proof produced by the plaintiffs further shows, that Stow had rented the premises upon which this machinery was put up, of the defendants’ testator, and he held and used them until January, 1874, when he surrendered
At the close of the evidence, the plaintiffs offered five prayers, all based upon the theory that, by the construction of the contract, as contained in the letters of the 23rd of July and the 3rd of August, the sale was conditional upon Stow’s approval of the engine ; and, as the engine had not been made satisfactory, and there had been no express acceptance of it, no property passed to Stow ; and that the acceptance of an assignment of the engine and pump by the defendants’ testator, and his subsequent disjoosition of them, amounted to a wrongful conversion of the chattels, and that no demand and refusal were necessary.
On the part of the defendants there was but a single prayer offered, and that was that the plaintiffs had offered no evidence legally sufficient to maintain either count of their declaration, and that the verdict should be for the defendants. All the- plaintiffs’ prayers were refused, and that offered by the defendants was granted, and the verdict rendered accordingly.
Without stopping to inquire whether the instruction given by the Court be obnoxious to the objection taken to it, that it is too general and indefinite, the real question in the case, assuming the truth of all the evidence offered by the plaintiffs, is, whether the property in the engine and pump passed to Stow under the contract, and the subsequent dealing in relation to it ?
The engine and pump, as already stated, were put up in October, 1870, and they continued in the use of Stow until January, 1874, when he assigned them to the defendants’ testator. Under the contract, as evidenced by the letters, the engine was to be run on thirty days trial, and
The principle of contracts of sale on trial or approval is well settled; and while, in such case, there is no sale until the approval is given, either expressly or by implication resulting from keeping the goods beyond the time allowed for trial; yet the failure to return, or the continued use and control of the articles after the time specified for trial, makes the sale absolute, in the absence of some new agreement upon the subject. Benj. on Sales, (1st ed.,) 483; Humphries vs. Carvalho, 16 East, 45; Ellis vs. Mortimer, 1 B. & P. N. Rep., 257; Spickler vs. Marsh, 36 Md., 222" court="Md." date_filed="1872-06-18" href="https://app.midpage.ai/document/spickler-v-marsh-7893462?utm_source=webapp" opinion_id="7893462">36 Md., 222.
Here, as we have seen, the machinery was in the use and control of Stow for more than three years, and there is no evidence of any new agreement for any such extension of time for trial-; nor is there any evidence that Stow ever definitely rejected the engine, or that the plaintiffs ever demanded its surrender with a view to its removal. On the contrary, the proof is, that the plaintiffs demanded payment of Stow, and that he promised to pay. The time of the use and control of the machinery by Stow, in the absence of evidence of any new agreement, gives rise to the presumption, as matter of law, that the machinery had been accepted ; and if it were conceded that he had a continuing option to reject the articles, as not being satisfactory, that option was determined and put an end to, and the sale became absolute, when he assumed to himself the right to assign the property to a third person. By that act, he treated the property as his own; and it concluded him as to any election he might have to reject the articles, as not complying with the condition upon which they were sold to him.
Upon the whole case, we think the Court below was entirely correct in rejecting the prayers offered by the
Judgment affirmed.