118 A. 192 | Md. | 1922
This appeal is from a judgment of the Circuit Court for Queen Anne's County, and a motion has been filed by the appellees to dismiss the appeal on the ground that the record was not transmitted to this Court within three months from the date of the appeal.
The docket entries show that the judgment was entered on the 16th of May, 1921, and that the order for appeal was filed on June 29th, 1921, that by several orders of the court below, regularly passed, the time for "filing and signing the exceptions" was extended to the 30th of September, 1921, and that the bill of exceptions was filed on September 28th, 1921. The record reached this Court on October 15th, 1921. *94 and Fred R. Owens, Esq., one of the counsel for the appellant, has filed an affidavit stating that the bill of exceptions was presented to the trial judge at Chestertown about the 21st of September; that the judge signed the exceptions on the 24th of September, and mailed the bill of exceptions to him at Denton, and that he immediately remailed it to the clerk of the circuit court at Centreville on the 27th of September, 1921; that he had previously made satisfactory arrangements with the clerk for the payment of the cost of the record, and that it was not possible for the clerk, after receiving the bill of exceptions, to prepare the record and transmit it to this Court within the three months from the date of the appeal.
As the bills of exception were prepared by the appellant, signed by the trial judge, and filed within the time allowed by the order of the court below, and the appellant had arranged to pay the cost of preparing the record, it cannot be said that the delay in transmitting it to this Court was due to the appellant or his counsel, and the motion to dismiss the appeal must therefore be overruled. Cochrane v. Little,
The appellees, Orlando Harrison and George A. Harrison, co-partners trading as "Harrison's Nurseries, J.G. Harrison Sons, Proprietors," were large growers and shippers of fruit trees, fruit, vegetables, c., with an office at Berlin, in Worcester County, Maryland. The appellant, The Eastern Shore Brokerage and Commission Company, a Maryland corporation, was engaged at Preston, in Caroline County, Maryland, in selling canned goods for packers on commission, and in the summer of 1919 had a contract with Edgar R. Loweree, who was operating a canning factory at Willards, in Wicomico County, Maryland, under the name of the Willards Canning Company, by which, in consideration of supplying the canning company with cans and other materials, the appellant *95 was to receive the entire pack of the canning company for sale for a commission of five per cent.
On August 12th or 13th, 1919, the canning company, through the son of Edgar R. Loweree, applied to the appellees for several "truck loads or more" of peaches, and was referred to G. Hale Harrison, the treasurer and sales manager of the appellees. Mr. Harrison told him that, as the canning company was a new concern, he could not let him have the peaches unless the company deposited the money to pay for same or gave the appellees a satisfactory "guarantee." Mr. Loweree said that the canning company "was closely affiliated with the Eastern Shore Brokerage and Commission Company at Preston," of which Mr. Walter M. Wright was president and James A. Colbert was sales manager, and Mr. Harrison replied that he had never heard of the brokerage company, but did know "Walter M. Wright personally," and that if he, Mr. Loweree, could make proper arrangements with the brokerage company the appellees "would try to do some business with him." The following day the appellees received a telephone call from the brokerage company at Preston and, when Mr. G. Hale Harrison answered the call, he was told that it was the brokerage company and that Mr. Colbert was speaking. In the telephone conversation that followed, Mr. Colbert, after learning from Mr. Harrison what the appellees had to sell, told him that the brokerage company was interested in the canning company, and in purchasing "raw materials" (fruit, c.) for the canning company; that the brokerage company had the exclusive right to sell the pack of the canning company, and wanted to get fruit, c., for the canning company to pack so as to increase the sales of the brokerage company, and wanted the appellees to furnish fruit to the canning company. At the close of the telephone conversation, Mr. Harrison asked Mr. Colbert to have the brokerage company confirm his statements by letter, and accordingly, on the 14th of August, 1919, the appellees received the following letter from the brokerage company: *96
"The Eastern Shore Brokerage and Commission Company.
"Reliable Service — Code: Armsby.
"Walter M. Wright, James A. Colbert, "President. Mgr. of Sales.
"Preston, Maryland, Aug. 14, 1919.
"J.G. Harrison Sons, "Berlin, Maryland.
"Gentlemen:
"With reference to the telephone conversation we had with your Mr. Hale Harrison today, we hereby guarantee the payment of 1,000 baskets of peaches sold to Willards Canning Company at Willards, Maryland, at 50c. per basket.
"For your information, wish to say that we are handling this pack exclusively, and that all their goods go through our hands, and we will see that you are paid for any goods you sell them, but would like you to keep us advised as to the quantity and the amounts so that we can keep some check on what they are doing.
"Yours very truly, "The Eastern Shore Brokerage and Commission Co.,
"JC — AL J.A. Colbert, Mgr. of Sales."
Relying upon this letter of the brokerage company, the appellees, from August 14th to October 3rd, 1919, sold the canning company peaches, apples and pears to the value of $4,952.73, and mailed to the brokerage company, on the day of shipment or delivery, a copy of the bill of each sale of such fruit. On August 23rd and October 15th, 1919, the appellees received checks to the amount of $1,510 on account of the fruit sold the canning company, leaving a balance due of $3,442.73. The fruit canned by the canning company was, by direction of the brokerage company, shipped by the canning company to the Terminal Warehouse in Baltimore, and the receipts for same turned over to the brokerage company, *97 and was still "in storage" in the warehouse at the time of the trial in the court below. After repeated demands on the canning company and the brokerage company for payment of the balance due, this suit was instituted by the appellees against the brokerage company in the Circuit Court for Caroline County, and was subsequently removed to the Circuit Court for Queen Anne's County for trial.
The narr. contains the common counts in assumpsit and a special count on the contract contained in the letter of August 14th, 1919, and the only pleas filed by the defendant were "never was indebted as alleged" and "never promised as alleged." During the trial, which resulted in a verdict and judgment for the plaintiffs, the defendant reserved twenty-eight exceptions, all of which are to rulings of the court on the evidence, except the twenty-eighth, which is to the granting of plaintiffs' second prayer, the rejection of the defendant's nine prayers, and the overruling of defendant's special exception to plaintiffs' second prayer. As the special exception is not in the record it will not be necessary to refer to it again.
In their brief filed in this Court, counsel for the appellant say:
*98"The record contains twenty-eight bills of exception — twenty-seven being taken to rulings on the evidence, and one to rulings on the prayers. Nevertheless, the main questions involved are few and simple. They may be classified as follows:
"(1) The question of the construction of Colbert's letter, i.e., whether it was ever intended to create a legal guarantee without restriction, qualification or limit.
"(2) The question whether the alleged guarantee, if it was given, was ultra vires of the defendant corporation, and, so, unenforceable.
"(3) The question whether Colbert acted within the scope of his authority, as agent of the defendant, in giving the alleged guarantee.
"(4) The question whether evidence offered by the appellant bearing upon the scope of Colbert's authority ought not to have been received.
"(5) The question whether notice of sales to Willard's Canning Company mailed to defendant was sufficient, though never received."
1. Taking up these several questions in the order suggested by the appellant, we find no support in the letter itself, or in the circumstances under which it was written, to warrant the contention of the appellant that it was not intended as an "absolute guarantee beyond the 1,000 baskets" of peaches mentioned in the first paragraph. The language of the second paragraph is equally as explicit. "We will see that you are paid for any goods you sell them" is a clear, definite and unambiguous statement of the undertaking of the appellant in reference to "any goods" the appellees might sell the canning company. It is conceded by counsel for the appellant that the words quoted, if they stood alone, would "be sufficient to indicate an intention to assume the obligation of a general guarantor," and we think that when they are read in connection with the rest of the letter any possible doubt as to their meaning is removed. The first paragraph of the letter refers only to the 1,000 baskets of peaches, which Mr. Loweree's son had tried to purchase a day or two before, and if the appellant had intended to confine its obligation to those peaches there would have been no occasion to refer to other sales to the canning company. But what the appellant desired was to secure from the appellees the fruit needed by the canning company for its factory, and which the appellees had refused to furnish without a deposit to cover the price, or a satisfactory "guarantee" of payment, and it was to meet that requirement of the appellees that the second paragraph of the letter was written.
2. The second question stated by counsel for the appellant is not presented by the record in this case. The special count in the narr. is upon the contract contained in the letter of *99
August 14th, 1919, which is set out in the declaration, and the only pleas filed by the defendant were, as we have said, "never indebted as alleged" and "never promised as alleged." It is said in 10 Cyc. 1156, "The defense of ultra vires is special and is not available under a general denial, but must be specially pleaded and proved." This rule, to the extent of requiring the defense to be pleaded specially, was approved in Conowingo LandCo. v. McGaw,
3. In reference to the third question, it would seem only necessary to refer to the evidence produced by the plaintiffs, which shows that, while on the stationery of the appellant Mr. Colbert, was represented to be the "manager of sales" and Mr. Walter M. Wright, the president of the appellant, the entire management and actual conduct of the business of the appellant was intrusted to Mr. Colbert, who received and *100
answered all communications with the appellant; who conducted negotiations for the purchase of materials and fruit for canning factories represented by the appellant, and who, in a number of other instances, entered into a similar contract on behalf of the appellant guaranteeing payment for such fruit and materials. This evidence also shows that the contract in suit was made for the benefit of the appellant, and to promote the business in which it was engaged; that the appellant, in pursuance of its contract with the canning company, received the output of the canning company's factory, or it pack, for the year 1919, which included the fruit purchased from the appellees, and which was still in the possession of the appellant, or in the warehouse subject to its order, at the time of the trial in the court below. In 14AC.J. 359, it is said: "Unless his authority is specially restricted, the authority and power of a general or managing officer or agent are co-extensive with the powers of the corporation itself, and he has authority to do any act on its behalf which is usual and necessary in the ordinary course of the company's business, or which he is held out to the public as having authority to do, and may exercise all the powers which the board of directors could exercise or authorize under the same circumstances in the general management of the corporation business." In the case of Carrington v. Turner,
4. The evidence referred to in the fourth question stated in the appellant's brief is embraced in the nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth and twenty-seventh bills of exception. All of these bills of exception, except the twenty-second, twenty-third, twenty-fourth and twenty-sixth, embrace a number of rulings on the evidence, and under the well settled rule requiring each ruling on the evidence to be made the subject of a separate exception, they will not be considered. Junkins v.Sullivan,
5. The fifth and only other question raised and discussed in appellant's brief, is whether the mailing of notices of sales to the canning company was a compliance with the contract, the defendant having offered evidence tending to show that the notices were not received by it. The appellant relies upon the statement in 21 Am. Eng. Ency. of Law (2nd Ed.), 582, note 1: "Where the giving of notice is a condition *104 precedent to liability under a contract, the notice contemplated is actual, and this requirement is not met by merely mailing a statement of the fact to be communicated, where a receipt of the letter is denied by the party to be charged. In such a case it must be shown that the notice was received." But we do not think the letter from the appellant to the appellees can be construed as requiring actual notice of sales to the canning company, as "a condition precedent to liability" of the appellant. The appellant had other means of knowing what fruit was being purchased by the canning company from the appellees, and if it had intended to make its obligation conditional upon actual notice from the appellees, it would have so stated in definite terms instead of saying, "but we would like you to keep us advised as to the quantity and the amounts so that we can keep some check on what they are doing." There was no attempt to show, and it is not claimed, that the appellant suffered any loss in consequence of its failure to receive the notices mailed to it by the appellees, nor is there anything in the letter, or in the circumstances under which it was written, to indicate that any other or different method of notifying the appellant was contemplated by the parties.
This disposes of all the questions raised by counsel for the appellant in their brief. The other exceptions to rulings of the court on the evidence and to its action on the prayers were not pressed in this Court, except to the extent that they were covered by the several questions we have already discussed and disposed of. We have carefully examined these exceptions, however, and do not find reversible error in any of them. Notwithstanding the evidence to which we have referred was uncontradicted, and, as we have said, brought the contract sued on within the implied authority of Mr. Colbert, the defendant's first and second prayers sought to withdraw the case from the jury, while the others, except the ninth, asked the court to instruct the jury that the burden was on the plaintiffs to show that Mr. Colbert, in writing the letter *105 of August 14th, acted within the scope of his authority, or that his action in the matter was subsequently ratified by the defendant, and that unless they found that he was acting within the scope of his authority, or that his action was subsesequently ratified by the defendant, their verdict should be for the defendant. The first and second prayers were, therefore, clearly objectionable, and in view of the effect of the evidence we have mentioned, the others would have been misleading. The defendant's ninth prayer was based upon the view that its obligation was confined to the one thousand baskets of peaches mentioned in the first paragraph of the letter, and is disposed of by what we have said in discussing the first question raised by counsel for the appellant.
Finding no reversible error in any of the rulings of the court below, the judgment will be affirmed.
Judgment affirmed, with costs. *106