56 A. 482 | Md. | 1903
The controversy in this case arose out of the following facts:
The Kenneweg Company, a corporation, is engaged in the grocery business at Cumberland, and Finney Robinson are merchandise brokers at Belair. On the 2nd April, 1901, the latter wrote to the former that one of the small packers in Harford County wished to sell a thousand cases No. 3 Standard Tomatoes at 67 1/2 cents per dozen net. On the next day the Kenneweg Company wired an acceptance of this offer and the same day Finney Robinson sent the sales contract signed by them as brokers and accepted by the seller, J. Barnes Bailey, agent. Having thus, for the first time, ascertained the *115 name of the seller, the purchasers appear to have at once commenced inquiries in regard to his financial standing, for on the 4th April they wrote to Finney Robinson that they had noticed that he had no rating and that in fact he was not mentioned in R.G. Dun's book. In concluding this letter they said: "What measure of responsibility attaches to this contract? We desire first to be assured that we will get the goods, then we intend to sell against the contract to our own trade, but must first have positive evidence that we will secure the goods." The answer of Finney Robinson to this communication is as follows:
April 5, 1901.
Kenneweg Co.,
Cumberland, Md.
Yours of the 4th inst. received and noted. You are right in being particular in regard to contracts signed with agents, but in this particular instance Mr. Bailey is agent for his wife. We have sold them cans and are taking a bill of sale covering them. We are very much interested in seeing that you get the goods, and from the position we occupy we would say that the contract is good, and that we will look after the same, both to your interest and for our own. We have sold Mr. Bailey's goods for sometime back. He is a small packer and we have always found his product above the ordinary Std. Tomato." This is the letter which Kenneweg Co. have made the basis of their claim in this suit.
There was some further correspondence between the same parties when on October 14th the Kenneweg Co. was informed that Bailey, the seller, would not be able to deliver all the goods he had agreed to sell, and on the 24th of the same month Finney Robinson enclosed to the purchaser a letter from the seller in which the latter gave his reasons for having failed to fulfill his contract, and they in their letter state that Bailey's whole pack amounted to only 1,200, while he had anticipated a crop of 5,000 or 6,000 cases. At the same time they informed the purchaser that they had taken 500 cases of goods against their bill of sale which they had mentioned *116 in their letter of April 5th. Without a more particular statement of the facts it is sufficient, from the view we have taken, to say that the Kenneweg Company did not get any of the goods which Bailey agent sold to it, and it brought this suit in the Circuit Court for Harford County against Finney Robinson, the brokers who negotiated the sale, to recover damages sustained by reason of the breach of the contract of sale by Bailey. The case was subsequently removed to the Circuit Court for Baltimore County and there tried. The narr. contains the common money counts and one special count. The latter is based on the allegation that the defendants in their letter of April 5th, assured the plaintiffs that the goods would be duly delivered to the plaintiff; and that they agreed that in consideration of the plaintiff accepting the offer of sale by Bailey they would guaranty the contract. The defendants pleaded the general issue, and the verdict being against the plaintiff, it has appealed.
At the trial of the case below, at the conclusion of the plaintiffs' testimony the defendant offered three prayers asking the Court to withdraw the case from the jury — all of them being based on the theory that there was no legally sufficient evidence in the case to show any contract between the plaintiff and defendants. These prayers were granted, and the correctness of this ruling constitutes the only exception presented by this record.
As we have already seen the plaintiff's contention is that by their letter of April 5th, 1901, the defendants guaranteed that the contract was good and that the plaintiffs would get the goods in accordance therewith. In order to support the allegation of its narr. in this respect the plaintiff relies, and relies alone, on the letter just mentioned, and hence if that letter, properly construed, does not fairly amount to a guaranty the plaintiff must fail. We have already transcribed it in the former part of this opinion. The portion relied on by the plaintiffs is in these words: "We are very much interested in seeing you get the goods, and from the position we occupy, we would say that the contract is good, and that we will look after the same both to your interest and for our own." *117
In the first place is it conceivable, without regard to authority or to any of the circumstances of the transaction, that by such language the defendant intended to give a guaranty or that the plaintiff at the time understood they were so doing. If the plaintiff required or expected a guaranty it was certainly very easily satisfied, if it accepted, as it did, without comment or objection language which amounts to nothing more than the mere expression of opinion. It does not seem to us that the language we have just quoted amounts to anything more. It is not said that the contract is good, but from the position they occupy they are able to express the opinion that it is good or would say it is good, c. How easy it would have been, as was said in Hatch v.Antrim,
In Thomas v. Wright,
If there was no contract of guaranty, as we have said there *119 was none, it will be unnecessary to consider any other questions discussed at the hearing — and it follows that the judgment appealed from must be affirmed.
Judgment affirmed with costs.
(Decided December 4th, 1903.)