61 Md. 192 | Md. | 1884
delivered the opinion of the Court.
When this case was here before on the appeal ’ of the present appellee Curtis, (59 Md., 131,) and on very much the same state of record as the present appeal, this Court held, that in regard to the 10,000 bushels of barley, the subject-matter of the present contention, the contract between the parties, as evidenced by the correspondence, was that Gibney bound himself to pay to Curtis 87 cents per bushel net for the barley, and to accept and pay the drafts of the latter, at five days, for the same, without regard to the sale of the barley made by him to Strauss, or the prices or terms of payment as agreed on between himself and Strauss. It was also held, that, assuming that the contract with Strauss was made by Gibney as agent or factor, and that Curtis dealt with him in that capacity only, he had no legal right to retain the money of Curtis as a margin or security for the performance of the contract on the part of Curtis, there being no such stipulation in the contract, and no evidence of any custom or usage binding on Curtis to justify it. It was further held, that Gibney’s failure to remit to Curtis the proceeds in his hands arising from the sale of the barley, according to the
The Court, in considering the question whether Gibney was acting in the transaction as agent or factor, or whether he dealt with Curtis as vendee of the bai’ley, refer approvingly to the case of White, Exparte, L. R., 6 Ch. App., 397. In that case it was held by the English Court of Appeal, that a person to whom goods are consigned to be sold, and who is at liberty to sell them at any price and on any terms he pleases, he paying a fixed price for them to the owner, is not an agent, but a vendee. And this Court, after referring to that case, and quoting a passage from the opinion of one of the Lord Justices, proceed to say:
“We consider these to be sound views, and if applied to the cases before us, they would be conclusive against the rights now claimed by the appellee, Gibney; but it is not necessary for us to rest our decision on that ground. Assuming that the contract with Strauss was made by the appellee as agent or factor, and that the appellant dealt with him in that capacity only, it is very clear that he had no legal right to retain the money of the appellant, as a margin or security for the performance of the contract on the part of the appellant, Curtis. Such a stipulation is not found in the contract, and there is no evidence of any custom binding upon the appellant to justify it. It is equally clear that upon his failure to remit to the appellant the proceeds in his hands, arising from the sale of the barley, according to the terms of his contract with the appellant, the latter was not bound to make further consignments to him.” And in support of this latter proposition are cited several authorities, among which is the case of Withers vs. Reynolds, 2 B. & Ad., 882, in which
In the case before us, Gibney, the present appellant, positively refused to remit the proceeds of the sale of the three car loads of the barley received by him, but claimed to hold the same as margin or security for future deliveries by Curtis. This it was held on the former appeal, as we have already stated, Gibney was not warranted in doing by the terms of the contract under which he received the barley from Curtis.
On the reversal of the judgments and remanding the cases for new trials, Gibney obtained leave and amended the declaration in his case against Curtis; and he inserted an additional count, whereby he declared that he, the plaintiff, purchased of the defendant, at a fixed price, ten thousand bushels of barley, to be delivered in Baltimore by the defendant, and to be paid for in a limited time, according to the custom of the business of buying and selling grain; and that, after the purchase, barley advanced in price, and the plaintiff offered, and was willing to pay the purchase money within the time limited, in accordance with the custom of the business of buying and selling grain, but the defendant refused to deliver the barley so contracted to be delivered.
At the trial on the remand of the cases, Gibney, in support of his contention as to the meaning of the contract, and to avoid the construction thereof adopted by this Court, offered to prove that when a sale of grain, in quantities of 1000 bushels and more, is made to a merchant in the City of Baltimore, to be delivered within a limited time, and after such sale, and before delivery of the whole, grain advances in price, there is a uniform, well established custom in that city, which permits the vendee to exact a reasonable sum of money, as margin, from the vendor, if none of the grain has been delivered; and if part has been delivered, such custom enables the vendee to retain in his hands a reasonable sum of money, the proceeds of sales made, as margin or security for future deliveries. Tliere was an offer to prove a similar custom in relation to the dealing between an agent or factor and his principal. These offers the Court below- rejected; and that ruling forms the principal ground of the present appeal.
Without reference to the manner in which the proffer of the proof was made, this Court is decidedly of opinion that •
By the proffer made in this case, the appellant proposed to show, that, by the usage, the vendee of grain is permitted to exact of the vendor a reasonable sum of money, as margin, or to retain in his hands a reasonable sum, as margin, to secure future deliveries. But the difficulty is, if this were a case for the admission of evidence of usage, that the usage offered to be proved furnishes no rule by which a reasonable margin may be determined. What a jury in one case might consider reasonable, another jury in a similar case might consider very unreasonable. It is essential to the validity of an usage, that it be uniform and certain. The usage in question would seem to be liable to great variation in the amount of the margin allowed to be demanded. Strauss, the purchaser of the 10,000 bushels of barley from the appellant, demanded and received of the latter a margin of $600, in the form of a note; while the appellant claims the right to retain in his hands, as margin or security from the appellee, under the same usage, the sum of $1,496.46 for the delivery of the remainder of the same 10,000 bushels of harley. This would certainly not indicate either uniformity or certainty in the application of the supposed usage. ¿In no aspect, therefore, in which the proffered evidence of usage could he considered, would it be admissible.
The offer to prove that sometime before the contract between the appellant and appellee in respect of the 10,000 bushels of barley, the latter had contracted to sell the
Judgments affirmed.