Baltimore City v. Schaub Bros. , 96 Md. 534 ( 1903 )

I respectfully dissent from the views of the majority of the Court upon a vital point in this case, and will briefly state my reasons therefor. The facts and the evidence in the case are sufficiently stated in the majority opinion to make it unnecessary to do more here than to refer to such part of the evidence as will make intelligible the grounds of my dissent. The pleadings in the case put in issue the right of the appellant to recoup from the claim of the appellees, in suit, damages sustained by the appellant by reason of the refusal of the appellees to carry out the contract which the appellees offered in evidence as the basis of suit.

The only ruling of the Court below which the record brings up for review is that upon the prayers submitted by the respective parties. The prayer which was offered by the appellees and granted by the Court asserted the proposition that if the Court (which was sitting as a jury) should find that this contract was entered into between the parties to the suit, and the other facts therein set out and should then further find that "the City Chemist did not make the analysis of the coal furnished to the School Board during the month of July, 1901, until September 6th, 1901, its verdict must be for the plaintiffs (appellees) for the amount of coal bills for the months of July and August yet remaining due and unpaid to the plaintiffs by the defendant, together with interest in the discretion of the Court on the amount so found to be due and unpaid from October 1st, 1901."

The nature of the evidence offered by the appellees under the pleadings and this instruction based thereon, in effect make this case a suit upon the contract by the appellees in which they are not confined to a recovery of such damages as they might be able to show they had sustained from a breach of the contract without fault on their part; but are enabled to treat the contract as not existing, as respects the appellant and its rights thereunder; and to secure to themselves all the fruits thereof, as far as it had been performed, without requiring them to show that they had performed or were ready, able and willing to perform the contract in its several requirements on their part. This ignores important evidence in the case affecting the rights and obligations of the parties to the contract. The gravamen of the instruction granted at the instance of the appellees and the ground upon which they based their rescission of the contract consisted in the failure of the appellant to pay "for the coal by them furnished" to the appellant for account of the School Board "during the month of July, 1901, at any time in the month of August, 1901, and up to and until September 3rd, 1901."

The contract provided that payments should be "made once a month by each department for all coal delivered to that department by the contractor during the previous month," and should "be made on the basis of what the coal" showed "on analysis." The provision for an analysis of the coal was an important one to the city — not so much in fixing the exact price of coal delivered, but in protecting the city against having supplied to it coal of inferior quality. The city of course could only act through its agents and no agent would have been justified in making payment for coal delivered until furnished with the analysis stipulated for in the contract. The appellees of course knew this or must be held to have known it. It was the duty of the city, however, to have the analysis in every case furnished within reasonable time and so that payments could be made for coal in accordance with the stipulation in the contract in that regard. Now, as to the analysis of the coal here in question the testimony shows that the City Chemist in answer to a letter addressed to him by the appellees wrote them on the second of August, 1901, "it will be sometime before the coal delivered to the schools will be ready. There will only be one analysis for each district from each shipper, and the samples which I now have will be kept until all the coal to the schools is delivered, when I shall mix the samples and furnish the School Board with the analysis. I will consider it a favor if you will kindly let me know when all the coal which you are delivering to the several schools under your contract, has been delivered."

The chemist, as a witness, testified that he had had a misconception as to how the analysis for this coal was to be made but that during August he learned from the proper city officials how it was to be made; that he had "a number" of visits from the appellees or one of them during August to inquire about the analysis and there was no complaint "about any delay" on his part "in furnishing the analysis;" that he understood, and thought it was understood "by all hands concerned" that "only one analysis should be made for the summer of 1901," (referring of course to the analysis of the coal for the School Board); that he had an analysis ready by September 6th, 1901; and that it took three or four days to make it as he had a good many analyses from the other departments, and they had to take their turn. A brother of the appellees, an attorney, who represented them in their dealings with the city, as shown by his own and other evidence, testified as follows: "The July payment under the contract which he had with the Mayor and City Council under date June, 1901, we did not consider due until the first of September following." There is other testimony that might be adverted to in this connection; but what has been noticed is sufficient, with the further fact that after the letter of the 2nd of August, 1901, the appellees went on delivering coal under the contract, to show that they waived such right as they may have had to rescind the contract because of the analysis not being furnished in August. They treated the contract as still in force, holding the appellant bound by all the terms thereof and apparently intending on their part to continue its performance, without any notice of an intention to rescind or any act indicating such intention until September 3rd, 1901. The present suit was brought, and the recovery, here sought, was based, on the assumption of the contract being a subsisting one up to that date. The appellant was entitled to have these facts submitted to the trying tribunal and to the legal effect to flow from them if they should be found. Bollman v. Burt, 61 Md. 415; McGrath v. Gegner, 77 Md. 331; Waggaman v. Nutt, 88 Md. 265, 267-9, 276.

On the 3rd of September, 1901, upon the theory of a waiver by the appellees of an analysis of coal during August, there were two reasons why the appellees were not entitled to rescind the contract. To entitle them to call upon the appellant for performance on its part on the penalty of a rescission of the contract, in case of a neglect of strict performance, it was incumbent on them to show that they had fully complied with the agreement on their part, Waggaman v. Nutt, 88 Md. 265-7, 276, unless there be some reason appearing which, in law, is a legal excuse for not performing. The contract here in question contained a stipulation, by reference to an accompanying table that the appellees should deliver to the appellant for use of the School Board something over 6,600 tons of coal and that two-thirds of this amount should be delivered during the months of July and August. The appellant was not only entitled, by this stipulation, to have this quantity of coal delivered; but also to have coal that would come up to the analysis prescribed and provided for in the contract. It did not gratify the contract to have a part of the coal delivered and coming within the analysis. The contract could only be gratified by having all the coal delivered and all coming up to the analysis.

When on the 3rd of September, 1901, the appellees attempted to rescind the contract instead of having delivered two-thirds of the coal as required they had by their own showing delivered less than one-third. How could they complain of the absence of an analysis upon which payment for the coal was to be based when they had failed to deliver the coal of which the contract contemplated the analysis was to be made? There is no excuse attempted to be shown for non-performance of the contract on their part by the appellees other than that having reference to the absence of an analysis of the July delivery of coal which has already been considered. But even if there had been performance by the appellees of the stipulation of the contract as to the quantity of coal to be delivered there would still have been no sufficient legal justification for a rescinding of the contract on the third of September, 1901. No definite, fixed day was prescribed in the contract on or before which the analysis should be made ready. The obligation imposed in this regard therefore upon the appellant was to have it ready in a reasonable time subject of course to the provision in the contract as to making payments for coal. What is a reasonable time is a question of law for the Court. 2 Parson's on Cont., 661; Ragan v. Gaither, 11 Gill John, 472; Burroughs v.Langley, 10 Md. 248; Mispelhorn v. Farm. Fire Ins. Co.,53 Md. 473.

The proof in the case shows that an analysis of the coal in question was ready within one week from the end of August and the appellees were so notified. From what appears in evidence, this was not an unreasonable delay of the analysis of the quantity of coal that was to be made the subject of analysis. The instructions granted by the trial Court at the instance of the appellees, in ignoring the facts and considerations pertaining to a waiver of analysis of coal delivered in July and to the right of the appellees to rescind the contract on the 3rd of September, 1901, shut out the defense of the appellant raised by its third plea and which there was evidence tending to support. In this, in my judgment, there was error. I agree with the majority opinion as to the rulings made upon the prayers proposed by the appellant.

(Filed February 11th, 1903.)