This is an appeal from a judgment rendered in favor of the defendants (appellees) in a suit by the appellant for an alleged breach of contract to deliver to him one thousand cases of tomatoes, each case containing two dozen cans three pounds standard tomatoes. The terms of sale were "77 1/2 c. per doz. f.o.b. Factory, 13 1/2 c. rate of freight guaranteed to Newark, N.J., goods to be of packing of 1906; shipment in early part of canning season; Swells guaranteed to July 1, 1907, packers labels. One car to be shipped as soon as packed and the other later. Terms cash, less 1 1/2 c. in 10 das." The sale note is dated June 2d 1906.
There were five common counts and a special count in the declaration. To the first five counts the general issue pleas were filed and to the sixth the general issue plea, one alleging that the plaintiff had countermanded the order and another that the plaintiff refused to accept the goods when offered by the defendants according to the terms of the contract. The plaintiff joined issue on the other pleas and traversed the second and the third filed to the sixth count. A note in the record shows that the defendants joined issue on them, but the appellant complains that that entry was made after the appeal was entered — under anunc pro tunc order of the Court. As there is nothing in the record showing any exception or objection to that action of the Court, or any *Page 26 proceeding taken which would authorize us to review such action, it is unnecessary to discuss it, but we will add that in Greff v. Fickey, 30 Md. 75, it was held, where a writ of diminution had been issued for the purpose of having some alleged errors corrected, that it was "the duty of a Court, when satisfied either from its own knowledge of what actually occurred in a cause, or from evidence adduced, that the docket entries as made by the clerk are erroneous or incomplete, to have them corrected; so that a full, true and perfect transcript of the whole proceedings as they actually occurred in the progress of the cause may be sent to the appellate Court in obedience to the writ of diminution." In that case, as in this, the term in which the proceedings had occurred had passed, and as it was not only within the power but the "plain duty" of the Court to have the errors corrected, if satisfied there were errors in the docket entries, the appellant would have no ground for complaint, even if he had properly brought the question here for review. As this record had not yet been transmitted to this Court, the correction was not made under a writ of diminution, but as it was distinctly held in Greff v. Fickey that it could have been, of course the appellant was not injured by it being done as it was, instead of the appellees waiting until the record came to this Court and then applying for the writ. If the issue was not in fact joined, and the plaintiff was injured thereby, it should have been brought to the attention of the Court by some appropriate proceeding.
The first exception was taken to the ruling of the Court in excluding from the jury the portion of the deposition of the plaintiff which gave the terms of the contract, the affidavit of the stenographer who took the deposition and the certificate of the Notary Public before whom it was taken that the contract was offered in evidence and filed as an exhibit but had been lost. Without stopping to consider the proper way to establish the contents of an exhibit filed with depositions, which is afterwards lost and not returned with the depositions, it is not perceived how the appellant was injured. *Page 27 The appellant called one of the appellees as a witness and a duplicate of the contract which was held by the appellees was admitted in evidence, at the instance of the plaintiff, and there is nothing in the record from which we can see that the plaintiff was prejudiced by this action of the Court. The contract was set out in the narr., the duplicate corresponds with it, and it was not denied by the defendants that it was the contract made by the parties. The part of the deposition which was excluded is not set out in the record, excepting by reference to it as "that part of the deposition of Mr. Koch which gave the terms of an alleged contract," which might indicate that the plaintiff had undertaken to give the terms of this written contract, but, however, that may be, the contract is set out in full in the plaintiff's first prayer, which was granted, and the case was tried by both sides on the theory that that was the contract made between the parties.
A letter from Mr. Greenfield, attorney for the plaintiff, was offered by the defendant, to which "the plaintiff objected on the ground of its incompetency and irrelevancy under the issues in this cause." The Court overruled the objection and permitted it to be read and used as evidence. That ruling is presented by the second bill of exceptions and we find no reversible error in it. The letter began by saying that the plaintiff had referred to him the communications of the defendants addressed to the plaintiff. If admissible for no other reason, it was to show that he said: "I note that in one of your letters you state that he cancelled the order. This my client emphatically denies. He asked you to hold off the shipment for a short time and I have your communications to him in which you agree to do so and to ship when required. Therefore there can have been no cancellation of the order and if you still refuse to ship we will hold you responsible." The plaintiff had offered in evidence a letter he had sent to the defendants, dated August 22d 1906, as follows: "Gentlemen — We have bought one thousand cases of tomatoes from you. Kindly do not ship them until we want them. We will let you know when to ship them" — also one dated *Page 28 September 24, 1906, which read: "Kindly ship us one car of tomatoes and oblige." He also offered a reply to that letter dated September 25th, 1906, in which the defendant says: "Your favor received, and in reply beg to quote you tomatoes at $1.00 per doz. — f.o.b. Whaleyville, cash with order. Your previous order was cancelled about 30 days ago when you refused to receive them, the tomatoes, according to contract."
The plaintiff had testified that he did not know of any reply to his letter to the defendants of August 22nd and on cross-examination was asked: "Have you produced all the correspondence that passed between you and the Wimbrow Bros. about this 1000 cases of tomatoes?" To which he replied, "I think so." Nutter J. Wimbrow, one of the defendants, testified that they commenced packing sometime in August — "I guess we commenced may be about the 10th day of August;" that they received the letter of August 22nd the day they finished packing 500 cases, and answered it the day he received it as follows: "Your favor received, and in reply beg to say that we will hold these tomatoes for you, if you will send us a check in payment for them. We will then store them at your risk and expense, otherwise we are ready to ship them immediately according to contract." He then testified that they received a reply to that letter which they had lost and could not find, but it was in substance as follows: "That he would not send us a check in payment for these tomatoes in advance, neither would he receive them if we shipped them consigned to H. Koch Co." An employee of the defendants also testified to having seen a letter of that purport.
One of the material questions which arose in the case was as to that correspondence — the position of the plaintiff being that there was no such correspondence and no reply to his letter of August 22nd. Several of the plaintiff's prayers offered relied on the failure of the defendants to reply to or disapprove of the letter of August 22nd. The letter of Mr. Greenfield admits that he had a "communication" as he calls *Page 29 it, which was a reply to that letter, for it is not pretended that the plaintiff asked the defendants "to hold off the shipment for a short time" except through that letter. Although Mr. Greenfield's letter shows the contents of the communication to be just the opposite from what Mr. Wimbrow testified, it also shows that there was an answer to the letter of August 22nd which the plaintiff denied. The letter was only objected to "on the ground of its incompetency and irrelevancy" but for the reasons we have stated we think it was competent and relevant. It was doubtless admitted when it was, although originally rejected, because in the meantime the defendants had offered evidence to show that Mr. Greenfield was attorney for the plaintiff in this case, when the depositions were taken in Newark, New Jersey.
Nor do we see any objection to the testimony of Mr. Ruark, presented by the third bill of exceptions. Although he was not conversant with the tomato packing business, he was in the wholesale grocery business, dealt in tomatoes and testified as to the market price in August — saying that seventy cents was the market price the latter part of August and later the price went up to eighty-five cents. That evidence showed a motive for the plaintiff not wanting to get the tomatoes the latter part of August, and as, according to the testimony offered by him; the price had risen in October to a point beyond what he was to pay for them, the evidence of Mr. Ruark reflected upon the controversy between the parties, as to what was done the latter part of August. If tomatoes were only worth seventy cents when the defendants received the letter of August 22nd, it was not so likely that the defendants would agree to postpone the delivery to the plaintiff, who was to pay 77 1/2 cents, as if they were worth the contract price or more. Business is not generally conducted in that way.
The fourth bill of exceptions contains the ruling as to the admissibility of the evidence of Walter Whaley, who worked for the defendants and was allowed to testify as to the contents of the letter alleged to have been received from the *Page 30 plaintiff in response to the reply of the defendants to the letter of August 22nd. He said they had packed five hundred cases of tomatoes and when he went to inquire about shipping them, he was shown the letter. The plaintiff objected to the testimony without the production of the letter. It had already been proven to be lost, and of course could not be produced. Under such circumstances the contents of the letter were admissible.
This brings us to the last bill of exceptions which embraces the rulings on the prayers. The plaintiff offered thirteen, all of which were rejected excepting the first and second, and the defendant offered three, two of which were granted. The exception states that: "The plaintiff excepted to the ruling of the Court in not granting his rejected prayers; and specially excepted to the granting of the defendant's first prayer, on the ground of the legal insufficiency of the evidence to support this prayer."
We do not deem it necessary to discuss all these prayers separately. The first of the plaintiff, which was granted, went as far as the plaintiff could ask, and perhaps further than he was entitled to. After submitting to the jury to find that the defendant sold the tomatoes as set out in the contract of June 2nd, it continued: "and shall further believe from the evidence that the defendants, upon their part, failed, neglected and refused to deliver and ship to the plaintiff the said tomatoes in the manner and at the time or times stipulated in said written contract of sale, and shall also believe that the plaintiff was ready and willing to comply with the terms and conditions of the said contract of sale, upon his part to be performed, then the verdict of the jury must be for the plaintiff." With the defendant's first prayer which was granted the jury may have been sufficiently instructed to prevent being misled, but unless it had understood that the plaintiff's prayer was qualified by the defendants,' as judging from its verdict it probably did, there was great danger of the jury ignoring the defence set up by the appellees. *Page 31
The plaintiff's second prayer, as granted, instructed the jury as to the measure of damages in as broad terms as he could desire, and without passing on all of the others separately, we are of opinion that plaintiff has no cause to complain. We would add that as to the fourth, fifth and seventh specially referred to in the brief, there was ample evidence, as we have seen, tending to prove not only that the plaintiff relieved the defendants of the obligation to furnish the tomatoes as contemplated by the contract, but a refusal by the plaintiff to accept the tomatoes at the time provided for in the contract. If it be true, as one of the defendants testified, that the plaintiff refused to pay for the tomatoes, if the defendants held them for him beyond the time the contract contemplated payment, and also said he would not receive them if the defendants shipped them to him, then the defendants were under no obligation to ship them and had the right to treat the contract as abandoned by the plaintiff. A party to a contract for the sale of such goods as tomatoes has no right to refuse to accept them as provided in the contract and then afterwards, when there is a rise in the market, demand delivery at the contract price. The testimony of the defendants tended to show that if the plaintiff had accepted the tomatoes as the contract called for, they could have made a fair profit, but when the plaintiff afterwards demanded them they would have sustained considerable loss, if they had then furnished them. It is true that the contract only provided for one car being shipped as soon as packed (which was about August 23rd) and the other later, but the plaintiff could not refuse to accept and pay for the one carload and then require the defendants to deliver the other when he saw fit to demand it. Without deeming it necessary to cite authorities, the case ofLawder Co. v. Mackie Grocery Co., 97 Md. 1, reflects on some of the questions involved.
There was undoubtedly evidence to support the statements in the prayer of the defendants and the questions of fact *Page 32 were submitted to the jury as fully as the plaintiff could ask. It follows from what we have said that the judgment must be affirmed.
Judgment affirmed, the appellant to pay the costs, above andbelow.