There are two bills of exception in the record now before us. One relates to the ruling of the trial Court which admitted in evidence certain testimony taken under a commission executed in Chicago; and the other concerns the action of the lower Court upon a prayer presented by the defendants. The verdict and judgment were in favor of the plaintiff and the defendants have appealed.
Suit was brought in the Circuit Court for Allegany County by A.H. Barber Company against The Potomac Bottling Works, to recover a balance due on a sale of a quantity of eggs. All the evidence adduced by the plaintiff was taken under the commission above alluded to, and as the right of the plaintiff to recover depends entirely on that evidence its admissibility will be considered at once. The two objections to this evidence relied on in the argument are founded on a supposed irregularity in the method of signing the depositions; and upon the fact thatcopies of certain letters are annexed to the depositions though no notice had been given to the defendants to produce the originals. It appears by the docket entries and the return of the commissioner that by leave of the Court a formal commission was issued to Charles S. Schoenmann, of Chicago, who, in execution of the commission duly swore and examined the witnesses produced before him on the interrogatories sent with the commission. Instead of *Page 511 each witness signing the deposition made by him, there is at the close of all the depositions and immediately preceding the return of the commissioner a sheet of paper containing separate certificates signed by each witness certifying that he has "read the within testimony and the same is true as to his testimony herein given." Each witness examined, signed such a certificate, and the commissioner wrote beneath each signature the words, "Subscribed and sworn to before me this 4th day of October, 1905, C.S. Schoenmann, Notary Public." This was a sufficient signing by the witnesses, even if the statute under which the commission was issued had required in express terms that the witnesses should sign the depositions. There is, however, no such express provisions. The commission was issued under sec. 16, Art. 35, Code of 1904, being sec. 15, Art. 35, Code of 1888; and whilst depositions taken under sec. 17 of Art. 35, Code of 1904, orsec. 16 of Art. 35, Code of 1888, are distinctly required to be signed when no commission has been issued, no such requirement is found in direct terms in the section under which the commission in this case was issued. Even if the copies of letters written by the plaintiff to the defendants should not have been appended to the depositions unless the defendants had been given previously, due notice to produce the originals, that fact was no cause to warrant the exclusion of all the evidence taken under the commission. The particular copies objected to should have been designated, and if the objection had been well taken as to them they would have been excluded. That was not done, and the Court was clearly right in overruling both of the objections which were made; and there was no error committed in permitting the depositions to be read in evidence.
Secondly. At the close of the case the defendants offered the following prayer which the Court rejected: "That the `wire' of the defendants and the letter of the plaintiff referring to same of November 20th, 1903, offered in evidence constitutes one indivisible contract, and if it be found from the evidence that defendants suffered the loss equal to the plaintiff's *Page 512 claim by reason of the failure of the plaintiff to ship the second installment of eggs on November 25th as plaintiff had agreed to do, then the plaintiff cannot recover in this case." A brief reference to the facts now becomes necessary in order that it may be seen whether the ruling on the prayer was right. Obviously the first inquiry which the prayer as framed presents is this: Do the telegram and letter therein referred to evidence of themselves and without more, the contract between the parties? The telegram is as follows: "Ship hunhred at once and hundred Nov. twenty-fifth, eggs. Potomac Bottling Company." The letter in reply thereto is in these words: "We received your wire of yesterday this morning as follows: `Ship hundred at once and hundred Nov. 25th, eggs.' We are shipping the hundred today and have entered the order for the other for the 25th, these are good eggs with the exception of the loss that we have written you about. It looks very much like eggs were going still higher and no doubt about the time you have received these eggs they will prove to be a good thing for you, A.H. Barber Co." It is clear that these two papers standing alone and unaided by any extraneous circumstances evidence no definite express contract at all, because the quantity, quality and the price of the commodity and the time of payment are entirely omitted from them — no usage or custom was relied on or alluded to or given in evidence. The things bought were eggs. "Ship hundred at once." Hundred, what? Eggs, crates, cases or dozens of eggs? Neither the telegram nor the letter indicates. Some definite quantity was intended by both parties, but the two papers failed to designate what that quantity was to be. Were the eggs to be fresh eggs or cold-storage eggs? Were they candled or to be recandled? The alleged contract is silent on the subject of quality. Noprice is set forth in the two papers referred to in the prayer, and though generally cash is implied in the absence of different terms, even cash may be waived by an unconditional delivery without a concurrent demand of the money. Powell et al. v.Bradlee Co., 9 G. J. 220. The prayer was erroneous in announcing as a legal *Page 513 proposition that the two papers alluded to constituted one indivisible contract, because the two papers lacked, in the particulars indicated some essential elements of a valid contract. This furnished an adequate reason for rejecting the prayer. But there were other reasons. From various telegrams and letters found in the record it appears that the Bottling Company bought from Barber and Company two hundred cases of eggs at a price which aggregated twelve hundred dollars. One hundred cases costing six hundred dollars were shipped. A draft for the price was drawn on the purchasers but was not paid. Barber and Company then refused to deliver the second one hundred cases. Later on the vendees remitted four hundred and twenty dollars to the vendors and claimed that they had lost one hundred and eighty dollars by reason of the failure of the vendor to deliver the second one hundred cases. This suit was then brought to recover that one hundred and eighty dollars from the Bottling Company. If it be conceded that the vendor broke the contract of sale and thereby became liable to the vendees in damages for that breach, the prayer is wrong in defining the measure of such damages. The doctrine of recoupment is relied on in the prayer. Now what are the damages which the defendants are entitled to set off against the plaintiff's claim for the unpaid balance of the contract price? In such cases as this the measure of damages is ordinarily the difference between the contract price of the articles sold and the market price at the time when and the place where they should have been delivered. Pinckney v. Dambmann Bros. Co.,72 Md. 184, and cases there cited; Hartlove v. Fait Co.,89 Md. 254. Instead of permitting the jury to find what that difference was, or whether there was any difference at all, the prayer, had it been granted, would have instructed the jury, that if, the defendants suffered a loss equal to the plaintiff's claim by reason of the failure of the plaintiff to ship the second one hundred cases, then the plaintiff could not recover the unpaid balance; but it wholly failed to prescribe or fix any standard by which the amount of that loss was to be ascertained or computed. It is true one of the defendants *Page 514 testified that he had sold all of the eggs which had been ordered but which had not been delivered and that the difference in price between what he had purchased them for and the price at which he had sold them to his customers was one hundred and eighty dollars, but no evidence was adduced tending to show what the market price of such eggs was at the time when and in the place where they should have been delivered. It is the difference between the contract price and the market price at the time and place indicated which furnishes the measure of damages for a breach and not the difference between the contract price and the price for which the vendee agreed to sell the article, to some one else. At all events the prayer should have been framed in accordance with the established rule regulating the quantum of damages in such cases, and it would have been error had the Court granted it in the misleading form in which it was drawn.
As we find no error in either of the rulings excepted to the judgment will be affirmed, and it is so ordered.
Judgment affirmed with costs above and below.
(Decided June 14th, 1906.)