Blakistone v. German Bank
Blakistone v. German Bank
Opinion of the Court
delivered the opinion of the Court.
This suit was brought by the appellee, to recover on an alleged acceptance of the appellant, of an order on the latter from Gwinn & Co. for the payment of whatever should become due on a contract between that firm and the appellant, for the manufacture of certain car-fenders. The contract referred to was created by two letters ; one dated the twelfth day of February from Gwinn & Co. to the appellant, in the words following : “ We will be pleased to furnish you with one hundred, more or less, complete fenders, equipments for the Washington and Georgetown Railway Company, for twenty-five dollars net per car. This will include two wheel-guards and one automatic projecting fender for each car, also equipping cars with the same ; ” the other, dated the next day, from Blakistone, “Your proposition for the manufacture of I oo fenders for the Washington and Georgetown Railway Company, dated Febry. 12th, 1895, is hereby accepted.”
On the 29th March, 1895, Gwinn & Co. gave to the appellee an order on the appellant “ for all moneys which may become due under the above contract, after deducting five hundred dollars already paid on account thereof.” This order was not presented to the appellant for acceptance until the twenty-second day of May following, when Blakistone accepted in writing, in the terms following : “ The within order is hereby accepted, less amount already advanced at this date, about nine hundred and twenty-five dollars.”
The appellant now claims the right to a credit for other sums paid by him to Gwinn & Co. after the date of the acceptance, but admits a liability of four hundred and fifty dollars and twenty-four cents, which he has paid into Court. This right, it is contended, arises from the fact, that by reason
All evidence was admitted subject to exceptions, and at. its conclusion the appellee moved the Court to strike out and exclude from the jury, first, all testimony offered, to prove that such verbal, agreement was made between the parties hereto, and secondly, all testimony offered to prove the verbal agreement between the appellant and Gwinn & Co. Bo.th of these motions were granted by the Court, and the propriety of so doing presents the first question to be now considered.
Was the evidence offered to establish the alleged verbal agreement between the appellant and Gwinn & Co., proper to go to the jury? It appears from the evidence, that the appellant had received from the Washington & Georgetown Railway Company a proposition to equip their cars with the fenders, of which he was the patentee, at a cost of $3 5 per car. The appellant testifies, that not knowing what the cost of fenders would be, if built elsewhere than in his own shops,. “ he sent for Mr. Gwinn of C. L. Gwinn & Co., whom he knew was desirous of making them, and told him * * to look over the cars of the railroad company and make up his mind for what price he could put the fenders complete on the cars in Washington later on, Gwinn returned, and said he could do the work for twenty-five dollars per car. The appellant said, he thought the price too low, that they could not be made for that sum. Gwinn then stated he
It maybe remarked here, that the defendant's first, second and third prayers, which were rejected by the Court below, are all based upon the theory, that there was evidence before the jury from which they could find that the contract between Gwinn and Company and the appellant required the latter to make advances to the former to complete the contract. In view of what has already been said it follows that the assumption of such a theory cannot be maintained. All of these prayers were therefore properly refused.
The proof also shows, that the consideration passing from the appellee to Gwinn & Co. for the order on the appellant was a loan on $1,500, made about the time the order bears date.^ At the time of its presentation to the appellant for acceptance, it is contended, an agreement was entered into between the appellant and the appellee the effect of which was to bind the appellee, in consideration of the acceptance, to make advances to Gwinn & Co. to enable them to complete their contract. This contention rests entirely upon the evidence of the appellant, and we will give what he
The general principle is familiar, that parol evidence is not admissible to qualify the terms of a written instrument; it being conclusively presumed, “ that such writing expresses the entire contract, and all evidence of previous colloquium or understanding must be excluded.” Delamater v. Chappell, 48 Md. 244. It therefore cannot be successfully contended (nor has it been in this case), that this evidence is admissible for the purpose of establishing a co-temporaneous agreement under which the appellant was to pay the appellee another or different amount than that called for by the order and its acceptance. Ought it to have been admitted to establish a parol agreement independent of, collatex-al to and distinct from the wnfittexi acceptance ? If the
In the last case cited the plaintiff agreed to accept the ■ appointment of secretary at a salary of Ü300, “ if the com-pany be completely registered and put into operation ; if not, I shall be satisfied with any renumeration for my time and labor you may think me deserving of and your means ■ can afford.” The defendant replied, “ it is distinctly agreed, * * if the company be not formed that part of your letter which alludes to your salary be null and void, and that . at the expiration of three months it is entirely left to me to give you such sum of money as I may deem right as compensation * * in the event of the company not being
It follows from what has been said, there was no error in rejecting the evidence.
The defendant’s fourth prayer is based on the theory that the appellant was at liberty to make the required advances to Gwinn to carry out their contract, provided they were made after Gwinn & Co. became insolvent and unable to complete the contract, and after the refusal of the appellee. We have already said, if the appellee did not bind itself by a valid contract to make advances to Gwinn & Co. its right as against Blakistone depended alone on a proper construction of the terms of the order and its acceptance. We have held that Blakistone was under no legal obligation to “ carry Gwinn & Co.,” and even if this were otherwise, there was no undertaking on the part of the appellee to take his place in that respect. In view of this, the well established doctrine that imposes upon a party the duty in certain situations of minimizing loss, has no application whatever. The appellee had a right to stand upon the terms of the order and acceptance. The granting of the plaintiff’s first prayer and the rejection of the defendant’s fourth was therefore proper. We do not find error in the modification made in the defendant’s fifth prayer. The judgment must be affirmed.
Judgment affirmed with costs.
Reference
- Full Case Name
- GEORGE BLAKISTONE v. THE GERMAN BANK OF BALTIMORE CITY
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- 7 cases
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- Published
- Syllabus
- Assignment of Money to Become Due Under a Contract—Acceptance of Assignment by Debtor—Agreement too Vagtie to Constitute a Contract—Parol Evidence to Affect Written Contract. W a person by whom money is to become payable upon the completion of certain work accepts an order drawn on him by the workman directing payment to be made to an assignee, such person becomes liable to the assignee for the full amount mentioned in the assignment, upon the completion of the work, and he is not entitled to deduct therefrom money afterwards paid by him to the workman, which advance was necessary to enable the latter to complete the contract. Before making a written contract for the manufacture of certain articles, the workman inquired whether if he asked for something on account, it would be given him. The other party replied that “ he would help him.” No reference to this matter was made in the written contract. Held, that there was no binding contract to make advances and that the above language was too vague and uncertain to confer any legal right on the workman. Defendant, who had employed a third party to do certain work for a stipulated sum payable on completion, accepted an order on him in absolute terms by which the money, to become due under the contract, was made payable to the plaintiff, after deducting certain advances already made. In an action on the acceptance defendant offered to prove that at the time of making the same he said that it would be necessary to make advances to the workman and plaintiff had replied “ I suppose we will have to take care of him.” Defendant subsequently made additional advances to the workman, and claimed the right to deduct these from the sum so assigned to the plaintiff. Held, that evidence respecting this parol agreement between plaintiff and defendant at the time of the assignment is not admissible (i), because parol evidence of a contemporaneous agreement is not admissible to contradict or modify the terms of a written contract; and (2), because if the parol agreement be regarded as collateral to the written acceptance, it is too vague and uncertain in its terms to authorize the jury to infer that the plaintiff either agreed to make advances to the workman himself, or thereby authorized the defendant to make advances and deduct the same from the . amount payable to the plaintiff, according to the terms of the assignment.