20 A.2d 156 | Md. | 1941
Loyal Order of Moose Lodge No. 358, of Moorefield, West Virginia, on August 12th, 1940, made a written agreement executed "by Loyal Order of Moose Lodge 358, Party of the second part: By. W.D. Grafton, Secy.; By Clyde Bean," with Morris Miller, doing business under the name of Miller Bros. Shows, executed in the following manner: "Miller Bros. Shows, Inc., By Wm. C. Murray, Gen. Agt., Party of the first part." This agreement provided among other thing that Miller Bros. Shows would exhibit in the town of Moorefield West Virginia, for the Moose Labor Day Celebration from September 2d 1940, to September 7th, 1940, and that the appellee would receive not less than $250 from all sources and that if the *532 receipts should be less, the party of the first part would make up the difference. The agreement further provided: "That it is mutually agreed by both parties to this contract that there be no verbal agreement or other contract, existing between them and that this contract is subject to the approval of Morris Miller, either by mail or wire." There was a further provision that the party of the second part agreed to furnish newspaper advertising, proper illumination and the grounds known as the Ball Park. Pursuant to said agreement, the Moose Lodge advertised the coming of the shows. Miller Bros. Shows did not show at Moorefield on the dates contracted for. A suit was entered by the appellee, plaintiff below, against the appellant, defendant below, on the common counts with a special count alleging the execution of the aforesaid contract and attaching the contract to the declaration. The suit was for $250 and a judgment was given by the court sitting as a jury for that amount. The appeal is taken from that judgment.
The appellant excepted to the ruling of the court in rejecting his two prayers which were demurrer prayers offered at the end of the plaintiff's case and again at the end of the whole case. The question for our decision is should the demurrer prayers have been granted.
The evidence offered in chief by the appellee shows that the appellant did not appear on the dates set forth in the contract, although the appellee was ready and willing to comply with the terms of the contract on its part. They had hired the ball park, put up wires for electricity, and advertised the shows at a cost of eight dollars and were ready to do anything else. Maurice Miller, the appellant, when called by appellee, testified that he was the manager of Miller Bros. Shows and that he was the show, that he recognized Mr. Murray's signature on the contract, that he had sent Murray to book shows two weeks ahead, that the contract in the case was given to Murray with knowledge that he would negotiate agreements with various organizations and sign them as general agent for the firm. He further testified that *533 Morris Miller whose name appears in the contract had been dead since June 27th, 1940, that the said Morris Miller was president of the company and his father, and that since his death, he, Maurice Miller, took the matter over. The appellee also offered in evidence the following letter:
"August 14th, 1940 "Frostburg, Md.
"Mr. William Grafton, "Moose Lodge, "Moorefield, W. Va.
"Dear Friend Bill:
"Am writing you to let you know will join the show this coming Sunday at Meyersdale, Penna. Fair when they pull in from Oil City, Penna., and as soon as the office wagon rolls in will get those passes and mail them to you. That was wonderful publicity that you got in the Cumberland paper. I sent a copy of it to the show. I talked over long distance with the Boss. Everything is Okay, Bill and our billposter will be with your man within the next ten days. Yours for all success,
"(Signed) Wm. C. Murray "Miller Bros. Shows, "Meyersdale, Penna."
Also the following telegram:
"Meyersdale, Penn. "August 24, 1940.
"W.D. Grafton, Sec. Loyal Order of Moose, "Lodge 358, Moorefield, West Va.
"Due to exorbitant state license impossible for us to approve contract you signed with William Murray. Kindly cancel same.
"(Signed) Miller Bros. Shows."
For the appellant, Maurice Miller testified that Miller Bros. Shows were not incorporated, and that when his father died, he took over the operation of the shows and that his father, Morris Miller, formerly acted as general manager and president of the company, and when his father died, he took his place. He further said that *534 Morris Miller, his father, owned the show and upon his death it passed to him, Maurice Miller, and to his mother, that he took over the operation of the show and that for all practical purposes at the time of the signing of the contract in this case and ever since, he had been Miller Bros. Shows. He testified on cross-examination that he did not know of the contract in this case until he got Mr. Murray's letter and that he then wired the appellee the telegram offered in evidence. We must note, however, that ten days elapsed between the date of the letter and the date of the telegram.
From the record, we are faced with a contract which provides among other things that "this contract is subject to the approval of Morris Miller, either by mail or wire," that Morris Miller had been dead at least six weeks before the signing of the contract, and this fact was known to appellant and not to appellee. However, the appellant in his brief contends that the person making the contract is the question to be determined, and not a mistake in name and that the contract should have been approved by Maurice Miller and that this approval was not given. It is not necessary therefore for this court to consider the provision for the approval of Morris Miller. Judge Pattison said in the case ofGeneral Automobile Owners' Assn. v. State,
The other contention of the appellant is that there is no evidence to show that appellee ever authorized the contract or that they ever gave any one authority to sign it, and further that appellee could not bring suit. Code 1939 art. 23, sec. 123, provides in part as follows: "Every unincorporated association or joint stock company having a recognized group name may sue or be sued in such group name in any action affecting the common property, rights and liabilities of such association or joint stock company." We must note that the execution of the contract is not denied by the next succeeding pleading of the opposite party. Code 1939, art. 75, sec. 28, sub-sec. 108. The appellee accepted the contract. An acceptance may be indicated by acts as well as by words. Duplex Envelope Co. v. Baltimore Post Co.,
The court was correct in rejecting the demurrer prayers directing the withdrawal of the case from the court, sitting as a jury.
Judgment affirmed, with costs.