Joseph & Bros. v. Schonthal Iron & Steel Co.

McSherry, C. J., delivered the opinion of the Court. This is an appeal from the Circuit Court lor Allegany County. Suit was instituted in that Court by the appellant, the Joseph Joseph & Brothers Co., a corporation formed under the laws of the State of Ohio, against the appellee, the Schonthal Iron and Steel Company of Cumberland, a corporation formed- under the laws of Maryland, to recover damages for an alleged breach by the last-named company of a contract made by it for the purchase of one thousand tons of scrap *391 steel rails from the first-named company. The breach consisted in the refusal of the Iron and Steel Company to take 331 tons of the total one thousand tons covered by the contract set up by the appellant. The declaration as first filed contained two counts and described the material purchased by the Steel and Iron Company as “scrap steel rails free from Switch, frog and guard rails.” Subsequently, an additional count was put in and later on the common counts for goods bargained and sold, etc., were added. After the trial had begun an additional count declaring on a written contract was filed, and the words “free from frog, guard and switch rails” contained in the original counts were, on motion, stricken from the declaration. The appellee, the Steel and Iron Company, pleaded that it was never indebted as alleged; that it never promised as alleged; that it satisfied and discharged the plaintiff’s claim by payment and in addition it put in a plea of set-off to the plaintiff’s claim. Upon the issues joined the case went to trial before a jury, and during its progress there were seven exceptions reserved to the rulings of the Court; and the questions with which we have to deal are set forth in the bills of exception contained in the record. It will perhaps be more convenient, and certainly it will tend to brevity, if we invert the order in which the questions arise on the record and deal with those presented by the last exception first. The last exception includes the rulings of the trial Court on the prayers presented by both sides for instructions to the jury and also its rulings on several motions made to strike out testimony which had been admitted subject to exception. The fundamental question lying at the root of the whole controversy is: Was there a contract between the parties at all ? Qn the part of the plaintiff, the appellant here, it is insisted that there was and that it is evidenced by certain writings; namely, a sales memorandum dated October 4th, 1901, a letter dated October 5th, another letter dated October 7th, and finally a third letter dated October 10th. Upon the hypothesis that these writings evidenced the w'hole contract between the parties with respect to the sale by the one and the *392 purchase by the other of one thousand tons of steel scrap rails, the 'first, second, third, fourth, sixth and seventh prayers of the appellant were framed. If that hypothesis be erroneous, the Court below was clearly right, in rejecting those prayers. If the contract was evidenced only by the writtten papers referred to, its construction was for the Court. If it was evidenced partly by .the written papers and partly by parol, then it was for the jury to determine what the contract actually was. Roberts v. Bonaparte, 73 Md. 191. Inasmuch as the appellant’s theory was founded on the assumption that the writings alone evidenced the contract, it will be necessary to set out those writings and briefly examine them. It appears that in consequence of a telephonic communication from the Steel and Iron Company to the Joseph Joseph & Brothers Co., transmitted from Cumberland to New York on October 4th, 1901, the latter company forwarded to the appellee on the same date the following sales memorandum. New York, Oct. 4th, 1901. S. M. No. 306. Messrs, Schonthal Iron & Steel Co., Cumberland, Md. ' We have sold to you (see letter). About 1000 tons scrap steel rails, five feet and up (with the exception of two hundred tons 56 lbs and up, three feet and over), original section 60 lbs and over, at $20.50 gross ton, F. O. B. Cumberland, Maryland. , Terms cash V-S^B-L or order. The Jos. Joseph & Bros. Company. On the following day the Iron and Steel Company replied in a letter which contains the following paragraph: Cumberland, Md., Oct. 5th, 1901. sjos. Joseph & Bros. Company, New York. Gentlemen:— We acknowledge receipt of your sales memo. No. 306 dated Oct. 4th, of about 1000 tons scrap steel rails to be five feet and up, none to be less than 60 lbs and as much over as you care to ship in section, with the exception of 200 tons of 56’s and up, of the P. R. R. pattern that was to come off the Central railway of N. J., this 200 tons we agreed take three feet *393 and over, but there must be none of these rails coming to us that was originally lighter when first rolled than a 60 lb section, these rails to be delivered cash B-L. or order at $20.50 gross ton f. o. b. cars our mills, B. & O. tracks, Cumberland, Maryland. Schonthal Iron and Steel Company. J. PI. Tatnall, G. M. On the 7th of October the Jos. Joseph & Bros. Co..replied as follows: New York, Oct. 7th, 1901. Schonthal Iron and Steel Company. Dear Sirs: As to the confirmation of 1,000 tons of scrap steel rails, last sold you, as stated in our contract, 200 tons of these rails are to be 56 lbs and up original section, and over three feet in length; the balance are to be 60 lbs and up, five feet and over in length. As to your remark “as to their coming from the P. R. R. ” this is incorrect, as we expect to ship them from the Southern Ry. This, certainly, is an immaterial point, however. Yours very truly, Jos. Joseph & Brothers Co. Leonard Joseph, Vice Prest. And on the 10th, the Iron and Steel Company mailed a letter from which the following is an extract: Cumberland, Md. Oct. 10th, 1901. Jos. Joseph & Bros. Company, New York. Gentlemen: — * * * “We note what you say in regard to the 1,000 tons that the 200 tons of three feet and up in lengths. This we note on the contract which is immaterial to us where they come from but it is understood that they are rails taken up from the tracks and not rails picked up from sidings along the road. Replying further to yours Oct. 7th, in which you advise that you are going to ship us some heavy rails, weighing 76 and 80 lbs per yard, it will be all right to ship these rails as we can use them in the future. Regarding drafts we will take this up as fast as the cars appear in sight, but you certainly would not expect us to pay drafts and wait a week or ten days or longer, before rails reached Cumberland. We have no desire to hold your drafts at all but will give them just as prompt attention as we can when rails appear in sight. Yours truly, Schonthal Iron & Steel Co., Geo. H. Tatnall, G. M. *394 It will be observed that if these four papers alone evidence the contract there was no meeting of the minds of the two negotiating parties. There was no consensus ad idem. The sales memorandum states that the appellant had sold to the appellee one thousand tons scrap steel rails, of certain dimensions, “original section, 60 lbs and over.” The appellee’s letter of October 5th, does not accept unqualifiedly the terms contained in the sales memorandum, but on the contrary adds a new condition, namely, that the scrap steel rails were to be of the P. R. R. pattern and were to come off of the Central Railway of New Jersey. In the reply of October the seventh the appellant not only does not accede to this new suggestion, but distinctly declines to do so, for it says in the letter of that date “as to your remark about their coming from the P. R. R. this is incorrect as we expect to ship them from the Southern Railroad.” Up to this point it seems reasonably clear that there had been no distinct agreement as to the pattern of the material or the place from whence it was to come, whilst by the letter of October 10th, the condition as to thz place from which the rails were to come, was waived, a new term ■was injected, because the Iron and Steel Company distinctly stated that “it is understood that” the rails to be shipped are to be “rails taken up from the tracks and not rails picked up from sidings along the road ; ” and it nowhere appears that this new term was ever accepted by the appellant company. In point of fact this series of letters consisted of propositions and counter propositions and nowhere brought the parties to a distinct and definite conclusion. Various terms were suggested but the minds of the parties ultimately never met, and in this particular, the case isnot unlike that of Johnson v. Corbett, 95 Md. 746. Again there does not appear tp have been a definite' understanding with respect to the time of payment. The sales memorandum states: “terms, cash vs. bill of lading, or order” which we take to mean that a draft was drawn and attached to the bill of lading and was payable on presentation without reference to whether the material had arrived or.not; whereas in the. letter of October 10th, the following statement appears: “regarding *395 drafts, we will take this up as fast as cars appear in sight, but you certainly would not expect us to pay drafts and wait a week or ten days or longer before rails reach Cumberland. We have no desire to hold your drafts at all but will give them just as prompt attention as we can when the rails appear in sight.” This proposition varied widely from the time for payment set forth in the sales memorandum. With no distinct agreement as to the time of payment, and with no assent to the new' term suggested in the letter of the ioth in regard to the rails being taken from the main track and not from the sidings, it is impossible to conclude that there was a definite agreement evidenced by these papers. And so the Court ruled when it rejected the appellant’s first, second, third, fourth, sixth and seventh prayers, and its ruling in this behalf is, therefore, free from error. The tenth, or only other rejected prayer of the appellant, asked the Court to instruct the jury that there was no evidence in the case legally sufficient to entitle the appellee to recover upon its plea of set-off and that the verdict upon that plea must be for the appellant. This is a demurrer to the evidence offered by the defendant in support of its plea of set-off. Evidence was introduced tending to show that some of the rails and other scrap contained in the 678 tons shipped to, and paid for by, the appellee were defective and not fit for use, and there was also evidence tending to show the quantity and the value of that inferior material. The evidence so adduced was competent as tending to prove the set-off. A witness produced by the defendant, the appellee, testified that he had inspected every car load of material consigned to the appellee, and hauled to Cumberland, and that every car which he inspected contained materials of light w'eight, short pieces, switch frogs and guard-rails and that class of material. This was true not only as respects the cars which had been unloaded and paid for but also of the cars which were rejected and not unloaded. It was also proved that the inferior material contained in the cars which had been paid for was carefully laid aside and marked and that the price which had *396 been paid for it was $634.31. It was further shown by admissions made by an agent of the appellant that the material, “all the material, was not up to the specifications;” and the agent who is said to have made those admissions saw some of the material unloaded and was in Cumberland nearly a month endeavoring to adjust the dispute between his company and the appellee. It was further proved that the same agent stated to the chief clerk of the B. & O. freight office in Cumberland that all the cars refused by the Schonthal Iron and Steel Company did not come up to the specifications. It was for the jury to say whether the testimony was worthy of credit and by the verdict they rendered they evidently believed that it was true. This evidence being in and tending to prove the issue which it was adduced to establish, it would-have been error had the Court withdrawn it from the considsideration of the jury by the granting of the praye’r we are now considering. Consequently the Court was right in rejecting that prayer. It was contended with much earnestness in the oral argument that the Court should have left to the jury to find the terms of the contract if the whole of the terms of the contract were not evidenced by the writings to which allusion has already been made. But it must be borne in mind that the Court was not asked by the appellant for such a ruling. On the contrary, the whole theory of the appellant’s case was based upon the hypothesis that the contract was evidenced exclusively by the writings. The Court was under no obligation of its own motion to give an instruction to the jury founded upon the theory that the contract was evidenced partially by writing and partially by parol. Had it been asked to so instruct the jury and had the evidence justified the granting of such an instruction, and had an appeal been taken because of a refusal by the Court to grant it, a* different state of case would then have been presented for review. As no such question is before us we need say nothing further in regard to it. ■ ■ The only prayer granted at the instance of the Iron and *397 Steel Company was its sixth, whereby the jury were told that if they should find from the evidence that after the date of the alleged contract sued on and before any rails had been shipped to the appellee, the appellant agreed with the appellee to sell and deliver one thousand tons of re-rolling rails and if they should further find that the 13 car loads of material for which damages are claimed by the appellant in this case, were not re-rolling rails, then the appellant was not entitled to recover damages for the refusal of the appellee to receive the same. This prayer was not excepted to on the ground that there was no legally sufficient evidence to support its hypothesis. It was obviously intended to present the appellee’s version of the contract of purchase and sale and if there was evidence tending to support its hypothesis, its legal conclusion was unquestionably right. There being no special exception founded upon the want of evidence to support any of its hypotheses, we must assume that there, was such evidence in the case, and so assuming, there can be no question that the appellant was not entitled to recover damages arising out of a refusal by the appellee to accept the rejected material, if, in point of fact, the material shipped was not fit for re-rolling rails when the contract had relation solely to material that was fit for that purpose. A great deal of the argument at the' bar and in the brief of the appellant was intended to convince the Court that there was no implied warranty that the material sold by the appellant would be fit for re-rolling, and, therefore, that the delivery of scrap which was not suitable for re-rolling was not a breach of warranty, and, consequently, that the appellee was not justified in refusing to receive it. The doctrines applicable to warranties are not involved in this case. It was said by Lord Abinger in Chanter v. Hopkins, 4 M. & W. 399, that “A good deal of confusion has arisen in many of the cases upon this subject, from the unfortunate use made of the word warranty. Two things have been confounded together. A warwanty is an express or an implied statement of something which a party undertakes shall be a part of a contract, and though part of the contract, collateral to the express object of it. *398 But in many of the cases, the circumstance of a party selling a particular, thing by its proper description has been called a ■ warranty, and the breach of such a contract a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfill; as if a man offers to buy peas of another and he sends him beans, he does not perform his contract; but that is not a warranty; there is no warranty that he should sell him peas, the contract is to sell peas and if he sells him anything else in their stead it is a non:performance of it. ’ ’ Precisely this principle was recognized in Columbian Iron Works v. Douglas, 84 Md. 65; and I he Warren Glass Works v. The Keystone Coal Co., 65 Md. 547. Before a defendant can be compelled to take anything in fulfillment of a contract of sale it must be shown not merely that it is equally as good as the article that was sold, but that it is the same article he has bargained for and none other. Bowes v. Shand, 2 App. Cas. 455. In other words, if the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser’s liability, and if this condition be not performed the purchaser is entitled to reject the article, or, if he has paid the purchase price, he is entitled to recover back the price as money had and received for his use. 2 Benj. on Sales, sec. 918. Clearly then, if the appellee purchased only such material as was suitable for re-rolling into lighter rails, it was under no obligation to accept scrap which was not fit for that specific use. The delivery of unfit material was not a breach, of warranty, but a breach of the contract by the vendor, and the. latter has no ground to complain if the vendee declined to accept that which it did not buy. We now come to the motions to strike out the testimony which had been admitted subject to-exception; and these present the same questions as some of those raised by the bills of exception. There were six of these motions, but we need only allude to those which were overruled. The first and second present substantially the same questions as are raised by the third and fourth bills of exception. A witness for the *399 appellee had testified as to conversations with the vice-president of the appellant company in the city of New York on the 8th of October, 1901, in reference to the kind of material that the appellee needed for use at its mill in Cumberland. In that conversation other contracts for additional material were made but those contracts are not involved in this controversy. It was distinctly stated by the witness to the vice-president of the appellant company that the business in which the Iron and Steel Company was engaged was that of re-rolling rails, that is to say, of rolling into lighter sections old rails of heavier weight, and it was further stated that the Iron and Steel Company was not using anything but long-length rails for re-rolling. This testimony and other of a kindred character was admissible under the appellee’s theory of the case, as it tended to show that the contract actually made was for the sale and delivery of material fit for re-rolling into light section rails; and if such was in fact the contract, the appellee was under no obligation to receive rails which were not fit for re-rolling. It was competent for the appellee to show that the appellant was aware of the kind of business in which the appellee was engaged, because that was a circumstance from which the jury might find that the contract actually entered into was the one for which the appellee contended and not the one on which the appellant insisted. The third motion to strike out evidence embraces the same question raised by the fifth bill of exception and has relation to the testimony given as to contracts other than the one sued upon and the sixth bill of exception presents a kindred objection to the admissibility of certain letters written by the appellant to the appellee. In one of the letters the Iron and Steel Company was distinctly told that “any switch, guard and frog or short rails, we do not expect you to take,” or as stated in the other of those letters “the material was to be free from switch, frog and guard rails and you do not have to take them otherwise.” The letters and the other testimony bearing upon the independent contracts not involved in this controversy were admitted by the Court upon the theory that *400 they tended tq show that the appellant knew the character of business the appellee was engaged in, and of course, therefore they tended to strengthen the appellee’s version of the contract.- In that light they were admissible and the motion to strike them out was properly denied, and the ruling in the sixth bill of exception was correct. Of the 13 cars which were rejected some were subsequently sent by the appellant to Syracuse and others to Tonawanda, New York. The contents were there sold. Negotiations had been going on for upwards of a month in Cumberland in regard to these rejected cars. Fechheimer, who was a representative of the appellant, finally failing to induce the appellee to take these cars of rejected material, requested the clerks and agents of the railroad companies in Cumberland to ship the cars away at night, and a witness, Bender, who was an agent of the B. & O. R. R. testified, that he made out the bills of lading in Fechheimer’s room at the Queen City Hotel behind locked doors because Fechheimer was apprehensive that an attachment might be levied upon the material. This evidence did not tend to prove any issue in the case, but it is not perceived how it could have prejudiced the appellant in the slightest degree. To justify a reversal two things are essential. There must be error and there must be injury; and unless it is perceived that thq error causes the injury there can be no reversal merely because there is error. The refusal of the Court to grant the fifth motion, and its ruling in the second bill of exceptions are, therefore, no grounds for reversing the judgment. Neither the admission nor the exclusion of evidence which does not appear to have affected the result or to have prejudiced the appellant, is a sufficient ground for the reversal of a judgment. B. & O. R. R. Co. v. Strunz, 79 Md. 335. The only remaining inquiry included in the seventh bill of exception is the objection made to the oral comments of the Judge spoken in the presence of the jury when disposing of the prayers. After the Judge had passed upon the prayers and the motions, one of the counsel for the appellant arose *401 and said : “We respectfully ask leave to except to the rulings of the Court in the rejection of such of the plaintiff’s prayers as were rejected, and the granting of such of the defendant’s prayers as were granted, and to the comments of the Court in the ruling upon the prayers in the presence of the jury.” The Judge at once said : ‘ ‘If there was anything said objectionable, it was not intended. What particular matter was objectionable?” The counsel replied: “I do not recall; it is a common practice and is a general objection.” The exception as formally reserved is “to the opinion expressed by the Court on the prayers in the presence of the jury.” This is entirely too general and indefinite. If the Judge made any remark that ought not to have been made we fail to find it in the record. When he asked counsel what it was he objected to, the latter was unable to state. Had anything objectionable been pointed out to the Judge he would certainly have corrected it. It is probably a safer practice for a Judge whé’n the jury are present to make no comments in disposing of prayers unless he intends to withdraw the case from their consideration; but if he sees fit to give his reasons for his rulings on the prayers and in doing so makes statements prejudicial to a party, an exception maybe taken, but the specific statement objected to must be distinctly indicated in the bill of exceptions. We now come to the remaining bill of exception namely, the first, which includes a ruling not covered by what has been already determined. Leonard Joseph, the vice-president of the appellant company, was the first witness placed upon the stand in the Court below. Upon cross-examination it was; shown that he had sometime previously given his testimony to be used in this case under a commission issued to New York, and after many other questions had been propounded to him, he was asked whether on the occasion when he was interrogated in New York he had not procured his stenographer to become a witness in order to corroborate an interview and certain circumstances then testified to, by him, Leonard Joseph? This question was objected to, the objection was overruled and the first exception was reserved. He answered that *402 he did not. In his testimony given under the commission the witness had testified that Mr. Joseph Schonthal had made the contract for the one thousand tons of steel scrap with the witness at the latter’s office in New York on October the'fourth, 1901; and it was with regard to the interview he said took place then, and the circumstances which he stated occurred at that time,-that he was asked upon his cross-examination the question objected to. It turned out that he was in error in his testimony given under the commission. He admitted in his oral testimony given in the trial Court that Joseph Schonthal had not been at his office on. the fourth of October, but stated that he had been there on the eighth. If he did induce his stenographer to corroborate his erroneous statement it was competent for the appellee to show that fact, as it was a circumstance that reflected on his credibility. But he answered that he did not procure his stenographer to support his mistake, and that ended the inquiry. No injury was done by permitting the question to be asked, and even if there had been error in allowing it to be put, that error would not warrant a reversal. (Decided June 8th, 1904.) The case went to the jury on the pleadings and under the instructions to which we have alluded and a verdict was returned in favor of the defendant, the appellee, for $121.66, which is the precise difference between $634.31 the sum actually paid for material which the appellee had rejected upon its delivery, but had previously settled for when it cashed the drafts before the scrap reached Cumberland, and $512.65, the amount due by the appellee for material accepted and not paid for. Upon that verdict judgment was entered and from that judgment the .pending appeal was taken. As we find no reversible error in the rulings excepted to, the judgment must be affirmed and it is so ordered. Judgment affirmed with costs above and below.