Gill v. Weller ( 1879 )

Bartol, C. J.,

delivered the opinion of the Court.

This suit was brought hy the appellee; the declaration contains eight counts; at the instance of-the appellants, the defendants below, the Superior Court instructed the jury that there was no evidence upon which the plaintiff was entitled to recover under the first seven counts. The case was tried and the verdict and judgment rendered upon the eighth count, which declares upon the order and acceptance following:

“ Granite, Aug. 28th, 1877.

Messrs. Gill & McMahon.

Gent:—Please pay Wm. E. Weller or order, two hundred dollars, on Sept. 10th and your note for hal. due on forty thousand Belgian paving blocks, at forty-eight dollars pr. thousand, James Clegg agreeing to deliver you forty or more thousand blocks, on the line of your road on cars, or the place called the Summit.

JAMES CLEGG.”

“We accept this order when the blocks is delivered.

GILL & McMAHOK”

It appeared in evidence that the appellants were contractors for paving West Palis Avenue, in Baltimore, for which they required Belgian blocks, and contracted with Clegg to deliver them. The appellee held a hill of sale of Clegg’s property, and consented to the contract made by the latter with the appellants, provided the payment of the price for the blocks should be secured to him, hence the order was drawn.

It further appeared in evidence that 38,300 blocks were delivered by Clegg and received by the appellants before the 10th of September.

On the 11th, Weller took possession under his hill of sale of the granite blocks quarried by Clegg, and next day called on the appellants to ascertain the number of blocks that had been delivered and proposed to deliver the balance, when he was informed by the appellants “that they did not now want them, that they had no use for them.” It may he inferred from the evidence that their contract for paving had been broken up; McMahon testified that Weller had taken it away from them, which however was denied by Weller in his testimony.

The appellee directed his men to-deliver at the “Summit” the remaining 1700 blocks, which was done four or five days thereafter; the appellants refused to receive them, their workmen told Weller’s men not to unload the wagons, and tried to prevent them from doing so; the .1700 blocks were “dumped” out upon the ground, there being no cars there at the time in which to put them.

Evidence was offered that the appellee demanded payment and was refused.

The exception of the appellants was taken to the ruling of the Superior Court upon the prayers.

There can be no doubt of the correctness of the Court’s instruction to the jury considered by itself.

It is free from objection, provided there was evidence in the case to support it, and that cannot be denied or questioned on this appeal, as no special exception was taken to it in the Court below on that ground. We cannot therefore reverse on this instruction.

The defence rests upon the proposition that the acceptance of the order was conditional, and binding on the appellants only in the event that the whole number of 40,000 Relgian blocks should be delivered by the 10th day of September, and in our opinion this is the true meaning and construction to be given to the acceptance. This appears from the fact that the 10th day of September, was the time fixed for the payment of $200 in cash and for giving the promissory note for the balance. The character of the work in which the appellants were engaged, the purposes for which they wanted the blocks, and the other evidence in the cause supports this construction.

There being no privity of contract between the appellants and appellee, and the whole right and claim of the latter being based upon the order and acceptance, it follows that if the condition was not performed by the delivery of the blocks before the 10th day of September, no right of action could arise. The appellants might have waived a compliance with the condition, and have received the blocks after the day named; but in this record there is no evidence of such waiver, nor of the acceptance by them of the 1700 blocks, attempted to be delivered by the appellee after the 10th of September, consequently the second and third prayers of the appellants ought to have been granted.

(Decided 19th June, 1879.)

It was not error to refuse their fourth prayer, as it was shown by the testimony of Weller, admitted without exception, that the note mentioned in the acceptance was to be a note at sixty days.

Their eighth and ninth prayers were also properly refused ; the eighth because the failure to give the note could not of itself defeat the action; and in our opinion there was sufficient evidence, to he submitted to the jury, of a demand by the appellee, and a refusal by the appellants to pay the money or give the note. ■

Their first and seventh prayers were also properly refused because too general, in omitting to state any point upon which the evidence was insufficient. Here there was not a total failure of evidence. Hatton vs. McClish, 6 Md., 407; Warner vs. Hardy, 6 Md., 540, 541.

With respect to the demurrer to the third or additional plea, the Superior Court was clearly right in its ruling.

Being of opinion there was error in refusing the defendants’ second and third prayers, the judgment will be reversed and a new trial ordered.

Judgment reversed and

new trial ordered.