Kriete v. Thomas J. Myer & Co.

61 Md. 558 | Md. | 1884

Stone, J.,

delivered the opinion of the Court.

Waidner & Co., as agents for Kriete, the appellant, sold to Myer & Co., the appellees, a quantity of canned fruit. The following is the memorandum of sale:

“Baltimore, May 12th, 1882.

“ Sold to Mess. T. J. Myer & Co. for account of E. W. Kriete, (1000) one thousand cans 3 lbs. Standard Peaches, half yellow, next season's packing, at 1.80 per doz., 60 days, or less 1J per cent, off for cash from date of delivery; said peaches to be fully equal to his last season's packing.

“(Signed,) H. A. Waidner & Co.”

Kriete refused to deliver the goods, and upon suit brought against him, set up the following as his principal defence to the action :

That the written note or memorandum of the sale differed from the parol contract in this: that the parol agreement fixed a special date, (Oct. 5th, 1881,) on or before which the goods were to be delivered, and that the written note or memorandum, having omitted such special date, was faulty, and that no recovery could be therefore had upon it. ’ This is the contention of the appellant.

On the other hand the appellees insist that no time for the delivery of the goods was specified or mentioned in the parol agreement, and none mentioned in the note or memorandum, and that the memorandum of the sale is amply sufficient to gratify the requirements of the Statute of Frauds.

It was conceded in the argument of this case, that, if the written note required by the Statute, contained all the substantial agreement made by parol, the note or memorandum was a sufficient agreement. But whether it is conceded or not such is clearly the law;

It is not necessary to the validity of such an agreement that the time of the delivery should be stated. If no time is stated for the delivery of the goods sold, then the law will .imply that it is the duty of the seller to deliver them in a reasonable time; and what is a reasonable time must depend upon the circumstances surrounding the case, and the nature of the article dealt in. Or if there is an established custom among merchants who deal in the particular goods sold, regulating the time of such delivery, the delivery will be controlled and regulated by such custom. 2 Benjamin on Sales, 891; Williams, &c. vs. Woods, Bridges & Co., 16 Md., 220; Salmon Falls Manu. Co. vs. Goddard, 14 Howard, 446.

We have then in the note or memorandum before us, all the stipulations necessary for a complete contract of sale, and which would certainly be sufficient to entitle the appellees to recover on, provided that the note or memorandum omitted no stipulation contained in the verbal agreement of the bargain itself. The memorandum required by the Statute not being in itself the sale, but only a memorandum of it. In addition to the written memorandum, the appellees offered the evidence both of Waidner and Shryver, who made the verbal agreement, that nothing whatever was said in such agreement about the time of delivery, and which evidence tended to prove that there was no variance between the verbal bargain and the written note thereof.

But the appellant having offered eyidence tending, as he claims, to show that there was a stipulation in the parol agreement for a special time for the delivery of the goods, to wit: on or before the 5th of October, 1881, or in the months of August or September, 1881, and that such stipulation not being in the written memorandum, asked the Court to instruct the jury that if they found such to he the fact, the appellees could not recover. This instruction the Court gave, and in giving it, the Court gave the appellant the benefit of all the law that he asked for in this branch of his case, and all that he was entitled to.

The first three prayers of the defendant each present this question of fact to be decided by the jury, and the Court told the jury most emphatically and in various forms of expression, that if they did find that in the verbal agreement on or before the 5th of October, 1881, or in August or September, 1881, was the time fixed for delivery, that then the appellees were not entitled to recover, as that date was not included in the written memorandum. This was the whole contention of the appellant, and the jury could not possibly mistake the instructions of the Court on that point granted at the request of the appellant.

The Court granted every instruction asked for by the appellant except the sixth, and it very properly refused that, if for no other reason than that a part of it was inapplicable and misleading. That prayer in its opening asked the Court to instruct the jury that there was no evidence in the case of any contract enforceable against the plaintiffs. The question at issue, and which was being tried in that case, was whether there was a contract enforceable against the defendant. It may be true enough, as an abstract proposition, that a contract enforceable against one of two parties, is enforceable against the other, but Courts are not required to announce abstractions, or to give any instruction that does not apply directly to the case before it. Besides this the residue of the prayer was covered by the instructions already granted, and the appellant has therefore nothing to complain of as to his prayers.

The first and second prayers of the plaintiffs which were granted, correctly enunciate the law of the case upon the theory of the plaintiffs. Taken together, these prayers instructed the jury that if they found that Waidner was the duly authorized agent of the appellant, and did as such agent sell the goods to the appellees, and that the written memorandum did contain substantially all the terms of the sale, and that the appellees were always ready to receive and pay for the goods, that then the appellees were entitled to recover; and upon the point of delivery, that if the jury found that there was a general and uniform usage in the fruit packing trade, fixing the time for the delivery of such goods, it was the duty of the appellant to deliver them in conformity to such uniform usage; but if the jury found there was no such usage, then it was the duty of the appellant to deliver the same in a reasonable time, such reasonable time to be determined from the circumstances of the case.

Erom what we have heretofore said, these instructions were correct, and there was evidence legally sufficient to go to the jury to prove a custom in the fruit packing trade.

The prayer of the plaintiffs marked one and a half should not however have been granted. That prayer instructed tlie jury that if they found that the verbal agreement did fix a time for delivery, that if that time was the same time fixed by the general and uniform usage in the trade of such goods, that then it was immaterial whether such time was specified in the written memorandum or not.

This was an error. It was not necessary, as we have already said, that any time of delivery should be mentioned in the written memorandum, provided no verbal agreement was made as to delivery, as in such case the law would fix the time. But if a time was fixed in the bargain itself, it must be incorporated in the note. 1 Benjamin on Sales, 277.

But it has been repeatedly held by this Court that not only must an instruction be erroneous, but that the appellant'must be prejudiced thereby before it can be made the ground of reversal. The cases of Young vs. Mertens, 27 Md., 114, and Parker vs. Wallis, 60 Md., 15, are among a number of cases on this point.

Taking all the instructions granted, and all the evidence in the case before us, we cannot perceive that the verdict of the jury could have in any wise depended upon, or was influenced by the erroneous instruction. The instructions ■asked for by the appellant, and which were granted and conceded, gave him in very specific terms, all the law that c&uld possibly apply to the facts in the case upon which he relied, and had offered any evidence even tending to prove. The only evidence whatever offered by the appellant, and which he claimed was legally sufficient, went to prove that by the verbal agreement, either on or before the 5th of October, 1881, or during August or September, 1881, was the time fixed for delivery. He made no pretence that any other except one of these two periods was the one fixed on verbally, and the Court told the jury very plainly that if they found that either of these periods had been fixed in the verbal bargain that the appellees could not recover, and their verdict must he for appellamt. The prayer marked one and a half does in some measure modify the instruction that applies to one of these periods, hut not the other, and the one period not touched or modified is the one principally relied on by appellant in his evidence'and argument.

But a stronger reason still exists why we should not reverse this case on account of the error in this instruction. Waidner and Shryver who made the parol bargain, both depose positively that no time for delivery was agreed upon between them. The evidence offered on .the part of the appellant to disprove this was of so slight and attenuated a character, that it is very doubtful whether it was legally sufficient for the purpose for which it was offered. No objection, however, was made to it on that score, and it went to the jury. But it is a very strong circumstance to be weighed by us in determining the question whether the appellant was really injured by an erroneous instruction, or by want of evidence. The other questions in the case arise on the admissibility of evidence. In the first exception Shryver, a witness produced by appellees, testified on cross-examination by appellant, that when in a former trial he referred to a purchase he had made through Levering in the Levering contract, as he termed it, and stated that the' purchase of the goods in question in this case, was made on the same terms that he made with Levering, he meant only the same price and credit, and so explained when he there testified. The appellant then offered a paper, and proposed to ask the witness if that was not the Levering contract referred to; but the Court refused to allow the paper to be read to the jury or the question to be asked.

The only object that the appellant could have in producing the paper and asking the question, was to lay the foundation for showing that the witness did testify differently in a former trial from what he then said he did. It is well settled that before you can confront a witness with previous declarations, whether made under oath or not, for the purpose of contradicting or impeaching him, his attention must be called to what it is alleged, that he has previously said or sworn to, that he may have the opportunity of an explanation. Unless the party examining the witness does give him such opportunity for explanation, he loses his right to contradict him by such antecedent declarations. In view of this, it is difficult to see upon what ground the Court below excluded either the paper or the question, as the only ground of their admissibility was for the purpose of contradicting the witness by other statements. But the error was cured by a subsequent admission, without objection, as it appears, of the other and contradictory statements of the witness. The appellant by the subsequent evidence so introduced derived all the benefit that he could have gotten if the paper had been previously read and the question asked. So that the appellant was not injured by the ruling.

(Decided 26th March, 1884.)

In the appellant’s second exception the Court below refused to allow the appellant to ask a witness on the cross-examination, whether one of the provisions in the contract of sale in this case (the quality of the peaches) was not one of the provisions of another contract dated the 11th of May ? In so ruling, the Court below committed no error.

The fact whether there was in another and different contract one of the same provisions found in the contract, which was the subject of this suit, was a fact totally collateral and irrelevant to the issue then being tried. It could only have been asked for the purpose of contradicting the witness on that point by other testimony. In such a case the rule is thus laid down by Mr. Greenleaf: “A witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence.” 1 Greenleaf on Evidence, (14th Ed.,) sec. 449.

The judgment will be affirmed.

Judgment affirmed.