Moses v. Allen , 91 Md. 42 ( 1900 )

This appeal brings up for review the action of the Circuit Court for Baltimore County in granting the fourth prayer of the appellee, who was plaintiff below, and in sustaining his demurrer to certain pleas filed to the amended declaration.

The facts material to the controversy may be stated as follows: The appellant, who is an earthenware manufacturer residing in New Jersey, owned a flint mill and quarry in Harford County, from which he procured ground flint for use in his factory. On May 6th, 1893, he made a contract with the appellee for an immediate lease and an ultimate sale to him of the flint mill and quarry. This contract appears from two papers executed at the same time, one of which is in the nature of a lease and the other is an agreement for the sale and purchase of the leased property.

The general scheme of the transaction was that the appellee should rent the property for five years, and during that period the appellant should purchase a portion of each year's output of flint and should retain part of the price therefor and apply it on account of the purchase money for the property. At the expiration of the five years the appellant was to convey the entire property to the appellee, who was then to give him a mortgage thereon for such balance of the purchase money as had not by that time been paid by the amounts to be retained from the price of the flint furnished him during the five years. The appellee was also to have the privilege of paying this balance of the purchase money for the property in flint. He was in the meantime to pay interest on the purchase-money, and also the taxes and insurance on the property, and keep it in repair. The amount to be paid for the property was $12,000.

The terms and provisions of the two papers constituting the contract are appropriate to the transaction and consistent with each other except that, while the second paragraph of the lease contains a positive undertaking by the appellant to purchase from the appellee 800 tons of ground flint in each and every one of the five years of the lease, the 13th paragraph provides that if the appellant should "not be able to take so much as 800 tons of ground flint per year then the said E.M. Allen (the appellee) shall only be required to pay an amount in flint or cash equal to fifty cents per ton for what flint he takes from the quarry each month."

The appellant contended that the 13th paragraph was intended to relieve him from his obligation to take 800 tons of flint per year and to regulate the method of paying the purchase-money for the property in case he took less than that amount of flint. The appellee, on the contrary, insisted that the appellant was by the second paragraph of the lease under a positive obligation to purchase the 800 tons per year, and that the whole purpose of the 13th paragraph was to give to the appellee the right to pay for the property by a royalty on its annual output of flint in case of a breach by the appellant of his promise to take the 800 tons per annum.

The appellant not only failed to purchase the 800 tons of flint per year, but took only 738 tons of it in the first three years of the lease, asserting that he could not use a larger quantity in his business owing to the depression in trade, c.

The appellee sued the appellant for breach of the contract, and attached the flint mill and quarry. The suit was instituted in Harford County and was moved to Baltimore County where the trial occurred.

Before issue was finally joined in the case there were a number of amendments to the pleadings and demurrers were filed by each party to certain of the pleadings of the other, but the only question arising upon the pleadings, which the record presents for our consideration, is the action of the Court in sustaining the demurrer of the appellee to the first, fourth and sixth pleas to the amended declaration.

The first plea set up the single defense that the appellant had been unable to take of the appellee as much as 800 tons of ground flint in any one year since the making of the contract, but the plea included a rehearsal, covering two full pages of the record, of the reasons why he could take no more. These reasons included the want of storage capacity, the depressed state of the market, the probable action of the Federal Government in reducing the tariff, and similar matters, actual and contingent, which were properly matters, so far as they were admissible in the case, not of pleading but of evidence. The plea in the form in which it was tendered was prolix and argumentative. It could not have been traversed except by a replication of like faulty character, and the demurrer to it was properly sustained. 1 Chitty onPleading, *566; Mitchell v. Williamson, 9 Gill, 78; Gott v. State, use of Barnard, 44 Md. 336-7. Even if the Court erred in its ruling upon the demurrer to this plea, no injury was done to the appellant, because his second plea, which the Court sustained, and on which the issue was finally joined, set up the same defense in clear and simple form, and in the testimony he got the benefit of the evidence which he was able to produce touching the facts alleged in his rejected plea.

At the trial of the case the appellee, as plaintiff, offered eight prayers and the appellant offered nine. The Court entertaining the view of the true meaning of the contract contended for by the appellant, granted all of his prayers and rejected all of the appellee's prayers except the fourth, which it granted. The appellant excepted specially to this fourth prayer, because there was no legally sufficient evidence to sustain it, and also excepted to the action of the Court in granting it. The prayer in question is as follows:

"That if the failure of the defendant to take so much as eight hundred tons of ground flint per year was because the defendant was unwilling to sell at a smaller profit than he had been getting before that time, then the diminished profits furnish no excuse for said failure, if the jury should be of opinion that he could still have sold the goods by accepting smaller profits."

The only substantial defense to the action was that the appellant was unable to take 800 tons of flint per year. He himself testified that in 1892 and the early part of 1893 his business was prosperous and he was then using about that amount of flint; but the business fell off shortly afterwards to such an extent that he could not sell goods enough to enable him to consume more flint at his factory than he in fact took from the appellee. He ascribed his inability to sell more goods to the state of the market, the silver panic, the anticipated tariff reduction and like causes. He also testified that in 1893 the factory made about $37,000 profit on an investment of capital and surplus amounting to $300,000, and stated in some detail the amount of his business for each year from 1893 to 1897.

William B. Allen, a witness for the appellant, who had been the treasurer and bookkeeper at his pottery works for seventeen years, and was evidently quite familiar with the business there carried on by the appellant, also testified as to the falling off in the amount of the sales at the works from the year 1893 on. He was asked whether the extent of the appellant's sales did not depend upon the profits he made; to which question he replied: "The sales depended upon the ability to sell the goods at current profits."

The defendant's second, third and ninth prayers, all of which the Court granted, were as follows:

2nd. That by the true construction of the contracts dated the 6th of May, 1893, and offered in evidence by plaintiff, the defendant was not bound to accept 800 tons of ground flint, or any other certain number of tons in any one year. He was only bound to accept so much ground flint as he or the Mercer Pottery was able to take. And if the jury find that at the date of said contracts, the defendant was the owner and operator of the Mercer Pottery, and was there engaged in the manufacture of earthenware, and that the said contracts were intended to provide for the purchase of ground flint to be used in the Mercer Pottery in the manufacture of earthenware, and that this was known to the plaintiff, Allen, at and before the 6th of May, 1893, then the defendant, Moses, was not obliged by said contracts to take of the plaintiff any more ground flint than he could use in his said business there carried on.

"3rd. If the jury find the facts stated in the next preceding prayer, then the jury is instructed that the defendant was not obliged to enlarge his works or said business in order to take more ground flint than he could profitably use in said business as it was carried on at the time said contracts were made, dated the 6th of May, 1893.

"9th. If the jury find that, at the date of the contracts offered in evidence by the plaintiff, namely, 6th of May, 1893, Mr. Moses was the owner and operator of the Mercer Pottery, and was there engaged in the manufacture of earthenware, and that said contracts were intended to provide for the purchase of ground flint to be used in the manufacture of said earthenware, and that this was known to Mr. Allen, the plaintiff, and further find that Mr. Moses took of Mr. Allen, and paid for, all the ground flint he could use in the reasonable and proper conduct of his said business, then the verdict must be for the defendant,"

Now whatever may be said of the plaintiff's fourth prayer standing alone as a single proposition of law, we think when the Court at the instance of the appellant granted the three foregoing prayers, it was proper to grant the appellee's fourth prayer along with them. The prayers which were thus granted, when considered together, as they should be, put the law of the case to the jury in a manner which did full justice to the appellant and we think that there was sufficient evidence in the case to support the appellee's fourth prayer when so taken and considered.

The appellee contended that the special exception of the appellant to the fourth prayer was not properly taken to entitle it to be considered by this Court.

There is but one bill of exceptions in the record and that is based on the action upon the prayers. In the certificate to this bill of exceptions, which is signed and sealed by the Judge, it is stated: "When the plaintiff's fourth prayer was offered the defendant objected to its being granted both generally and because there was no legally sufficient evidence to sustain it," and also that he excepted to the action of the Court in granting the prayer. This we think makes it plainly apparent from the record that the special objection was made at the trial and passed upon by the Court. It is not essential that the special objection should be made in writing or that it should form the subject of a separate bill of exceptions. If it appear by a certificate under the hand and seal of the Judge who tried the case, such as is found in the present record, that the special objection was in fact made by counsel and passed upon by the Court it is sufficient. Albert v. State, 66 Md. 334. The judgment will be affirmed with costs.

Judgment affirmed.

(Decided March 21st, 1900.)