This suit was brought to recover damages for a breach of contract. It is alleged, that the appellees agreed to sell and deliver to the appellants, five thousand cases of canned tomatoes, but neglected or refused to deliver the same. *Page 571
The Court by its instruction took the case from the jury and directed a verdict for the appellees.
The alleged sale was negotiated by Johnson North, of New York City, on account of the appellees to William Nicholls Co., of Chicago. The contract or "sales ticket," sent to Nicholls Co. was as follows:
Bel Air, Md., Sept. 20, 1901.
Sold to Messrs. William H. Nicholls Co., Chicago, Ill., for account of Smith, Rouse and Webster, Bel Air, Md., five thousand (5,000) cases No. 3 standard tomatoes at 87 1/2 cents per dozen f.o.b. county, for buyers labels $.90 per thousand for same. Terms net cash. To be of 1901 packing and shipment during the present season.
Smith, Rouse Webster."
Accepted No. 874 Smith, Rouse Webster"
This was executed in duplicate; and on one of the copies a line had been drawn through the words "Nicholls Co." and above them was written "Van Camp Packing. Indianapolis."
On the 23rd of September Nicholls Co. informed the appellees, by letter of that date, that the goods had been purchased on account of one Schubrick; and later on, by letter of 28th of September wrote the appellees that they had had trouble with Schubrick and that, "while the matter is still unsettled we write you as early as possible to see if arrangements can be made, either to cancel the purchases which we feel there will be no trouble, or should you want to take them on your own account, on the original purchase at 87 1/2c. net cost." On the first day of October (presumably in reply to this letter), the appellees telegraphed to Nicholls Co.; "Schubrick may cancel, but must act today." On the same day Nicholls wired to the appellees, "all tomatoes for account of Schubrick we have turned over to Van Camp Packing Company." The effect of this correspondence amounted to an offer to cancel the Schubrick matter, and to turn the goods over to the Van Camp Company. The appellees accepted the offer by their telegram of the 1st of October, subject however to the condition that "we (they) have an immediate wire routing, otherwise must cancel." The offer thus made was an *Page 572 entirely new one, having no necessary connection with the Schubrick transaction, and open for the acceptauce of the appellees with or without conditions. The actual acceptance of the appellees was upon the condition that the appellees should have immediate wire routing. We think this, when agreed to by Van Camp, established a new contract, whereby the Van Camp Packing Company was to secure the tomatoes, provided the condition of "immediate wire routing" was complied with.
The Court below also held, that there was no evidence from which the jury could find that the condition had been performed. The proof shows that the telegram of the appellees accepting the offer to turn the tomatoes over to Van Camp, subject to the condition, was sent on the evening of the first of October, as a night message; it reached Chicago at 8.06 P.M. of the same day and was delivered early on the morning of the second; Nicholls made no reply giving routing until 6.25 P.M. of the second, an hour that made it a night message, not deliverable until the morning of the third. It thus appears, that instead of writing the routing immediately, there was a delay in so doing from early in the morning of the second to such an hour of the evening of that day that the telegram could not be, and was not, delivered in Bel Air until the morning of the third. The appellees instead of having an "immediate wire," did not have it until the next day. The testimony shows that it requires about an hour for a telegram sent from Chicago to be received in Bel Air; so that there was a delay of a whole day, or nearly so. Nicholls knew or ought to have known all these facts; his delay therefore in sending the reply, must have been deliberate.
The construction of the telegram of the appellees accepting the offer subject to the condition was for the Court; whether under this construction it had been complied with was for the jury. In the case of Bernard v. Torrance, 5 G. J. 405, where the letter containing the offer had the proviso, "if you accept this offer let me know by return mail, that I may regulate my foreign orders," the Court construed the contract to mean that the acceptance must be made by return mail or by *Page 573 some "other mode of conveyance equally speedy, and whether or not" this part of the offer was complied with "was a question exclusively for the consideration of the jury." We are therefore of the opinion, that the meaning of the word "immediate" as used here, was a matter for the Court to decide. In so doing, this Court can not be shut out from the same light, which the parties enjoyed when the telegram was sent and delivered; it is entitled to place itself in the same situation the parties were in, "so as to view the circumstances as they viewed them" and so as to judge of the meaning of the word. Roberts v. Bonaparte, 73 Md. 204.
It cannot be contended, in the light of these circumstances, that the appellees intended to be understood as demanding the wire routing instantly; that was impossible. Nor do they require it to be, but as soon as practicable or reasonable. They used the word "immediate;" that is as speedily as prompt action, without delay, would enable the appellant to furnish it. The Schubrick transaction had then been standing open for more than ten days; the price of tomatoes was rising rapidly; and it is entirely reasonable to assume that the appellees were earnestly desirous to close the matter up speedily, so that they could take advantage of the rising market. They therefore made it a condition precedent, that the appellants should give them "an immediate wire routing."
As we have seen the wire routing was delayed for a whole day. The Court below committed no error in ruling that there was no evidence which would "justify him in letting the case go the jury."
The first exception was to the exclusion of certain testimony, consisting of the written and oral declarations of the parties, and offered by themselves respectively, in which each construes their own acts. This exception was not relied on at the argument, and we content ourselves by saying, that we find no error in the ruling of the Court.
Judgment affirmed.
(Decided June 22d 1905.) *Page 574