Deford v. Dryden , 46 Md. 248 ( 1877 )

Grason, J.,

delivered the opinion of the Court.

This suit was brought in the Superior Court of Baltimore City, by the appellants to recover from the appellees damages for an alleged breach of contract, in not delivering two hundred and eighty-two hides, the balance of five hundred, which the narr. charges and the proof shows the latter had agreed to dispose of to the former. The counsel of the respective parties filed a written agreement in the case waiving all errors in pleading, and agreeing that either party might rely upon any matter of claim to which they would be entitled, if the same had been specially declared on or pleaded. Evidence was introduced by the appellants, tending to prove that the appellees agreed to deliver to them five hundred hides of certain weight, at eleven and one-quarter cents per pound, to be paid for in the notes of Hewlett & Son, without recourse to the appellants. They offered evidence further to prove, that they had previously purchased hides of the appellees upon five or six occasions, and given in payment the paper of other firms, some of which was not endorsed by appellants, and others of which was, and that when so endorsed they had taken from the appellees a writing, by which it was agreed, that the appellants should not be held liable by reason of their said endorsement, in the event of the paper not being paid at maturity, but that they should be released from the same. They also offered proof to show that on the 13th October, the day before the hides were to be delivered under the agreement, they heard a rumor that Hewlett & Son would be protested that day, and that they immediately sent to the appellees’ place of business, and procured the delivery of two hundred and eighteen hides.

The appellees offered evidence tending to prove, that they entered into the contract with the appellants, to sell them five hundred hides at the price of eleven and a quarter cents per pound, and to take the paper of Hewlett & Son in payment, bat that nothing was said at the time of making the agreement, or thereafter, about taking it without recourse to the appellants, that they expected the paper of Hewlett & Son to be drawn to the order of the appellants, and to be endorsed by them. They further proved that they did not know what they would have done, if the paper of Hewlett & Son had been drawn as they expected, but suppose they would have released the appellants from liability on their endorsement, by a written release similar to those they had given on previous occasions. It was further proved by them that the hides were to be delivered, under the agreement, on the 14th October, and that on the 13th, one of the appellants came to the place of business of the appellees with a large number of drays, and induced them to deliver two hundred and eighteen of the five hundred hides at that time. It further appears in proof that Hewlett & Son were protested on the 13th October, and were afterwards adjudged bankrupts, but that the appellees had no knowledge that they had been protested at the time they delivered the hides, on the afternoon of the 13th October, but heard it the next day, and refused to deliver the balance of the hides, and made a demand upon the appellants for a return of those already delivered. Upon this state of the proof the appellants offered five prayers, all of which were granted, and the appellees four, all of which were rejected as offered, but the Court granted their second in connection with the appellants' third. The judgment being for the appellees, the plaintiffs took this appeal.

It is contended that the Court erred in granting the appellees’ second prayer in connection with the appellants’ third, because, as they allege, it is inconsistent with and contradictory of both their third and fourth. Their fourth prayer is based upon the theory of an exchange or barter of the hides for the paper of Hewlett & Son, while the appellees’ prayer, on the contrary, is based on the theory that the transaction between the parties constituted a sale of the hides, the consideration for which was to be paid in the notes of Hewlett & Son. Whether the transaction was an agreement for an exchange, or a sale, was a question for the jury to determine, and these prayers of the respective parties fairly presented that question to them for decision. We think it clear, that there is no conflict whatever between the appellees’ prayer and the appellants’ fourth, the former instructing the jury that if they should find that it was a contract for a sale of the hides, and should further find the other facts stated in the prayer, that then their verdict must be for the appellees ; while the latter instructed them that, if they should find that it was an agreement for an exchange or trade of hides for Hewlett & Son’s paper, then the fact that nothing was said about recourse to the plaintiffs upon such paper, and the failure of Hewlett & Son, and the comparative worthlessness of their paper, were no bar to the appellants’ right to recover. These instructions are based upon entirely separate and distinct theories, are not contradictory, and can well stand together.

it was further contended that the appellees’ prayer is inconsistent and in conflict with the appellants’ third .prayer. The appellees’ prayer instructs the jury that, if they shall find a sale of the hides, as stated in the prayer, to be paid for in the notes of Hewlett & Son, and shall further find that nothing was said at the time of the sale as to whether said notes were to be taken without recourse to the appellants, and that the appellees did not, at the time of sale, or at any time afterwards, agree to accept said notes in full payment of the hides and to run the risk of their being paid, then the appellants are not entitled to recover in this action if the jury shall further find that, before the time for the delivery of the hides under the agreement, Hewlett & Son failed and were declared bankrupt, and that the two hundred and eighteen hides were delivered before the appellees were aware of said failure, and that upon becoming aware of said failure they demanded a return of the hides so delivered, or payment in cash, or the notes of the appellants at four months. This prayer, as we have said, was refused by the Court as an independent proposition, but was granted in connection with the appellants’ third prayer. The latter contains an instruction that if nothing was said in the contract between the parties in reference to recourse or non-recourse to the appellants upon the paper of Hewlett & Son, yet, if in consequence, and in pursuance, and in view of the previous dealings of the parties, it was their common and tacit understanding that said paper was to be taken without recourse, and the contract was made subject to that understanding, the jury must accept such understanding as constituting the contract in that regard.

The Court in granting the appellees’ prayer in connection with this, endorsed upon it that it was granted in connection with the plaintiffs’ third prayer, “which states the evidence from which an agreement to take the notes of Hewlett & Son without recourse to .Deford & Son, if they were not paid, may be inferred.” The two prayers must, therefore, be taken and read together, and when so read, we think it clear that the appellants’ may be fairly regarded as a modification of the instruction granted under the appellees’ prayer. Taking them together, they instruct the jury that, if they find that at the time of the agreement between the parties, or afterwards, nothing was said about recourse to the appellants upon the paper of Hewlett & Son, and shall find the other facts stated in the prayer, the appellants are not entitled to recover ; although notwithstanding nothing about recourse to the appellants was said at the time of making the agreement, or afterwards, if the jury shall find that in consequence, and in pursuance, and in view of the previous dealings of the parties, it was their common and tacit understanding that the Hewlett paper was to be taken without recourse, and the contract was made subject to that understanding, then the jury must accept such understanding as constituting the contract in that regard. This reading of the two instructions shows them to be not only consistent, but we do not think that any jury of ordinary intelligence could misunderstand, or be confused or misled by them. And especially is this so, when the Court, in granting the appellees’ prayer, pointedly directed by a written endorsement on it, the attention of the jury to the appellants’ third prayer, by which they were instructed that they must accept the common and tacit understanding of the parties that no recourse was to be had to the appellants on Hewlett’s paper, if they should find suph to be their common and tacit understanding from their previous dealings, even though nothing was in fact said about recourse at the time of the agreement or afterwards.

(Decided 2nd March, 1877.)

Judgment affirmed.