Bartol, C. J.,
delivered the opinion of the Court.
This suit was brought by the appellees, to recover damages for the alleged breach by the appellant, of a contract for the sale and delivery of a quantity of apples.
The contract which was in writing, was as follows :
[405]*405“Baltimore, November 23rd, 1871.
“This is to certify, that I, A. Kribs, agree to furnish Lewis Jones & Son, with what apples I have on hand, at two dollars and fifty cents per barrel, say about three thousand barrels, he to pay my drafts at the bank as he receives the apples, not exceeding one car-load a day.
“In consideration of the above agreement, Lewis Jones & Son, agree to pay A. Kribs, three notes, five hundred and forty-three XW dollars each, at fifteen, thirty and forty-five days.” (Signed)
Lewis Jones & Son,
A. Kbibs.
The explanation of the latter part of the agreement referring to the notes, as furnished by the proof, is that there was an unsettled balance due from the appellees to the appellant, for apples purchased under a previous contract, which it was agreed should be secured by three promissory notes, endorsed by third persons, and the giving of which formed a part of the consideration inducing the appellant to enter into the contract of November 23rd 1871.
The appellant was a forwarding, commission and produce dealer, living at Norwalk, Ohio; the appellees were produce merchants doing business in Baltimore.
The declaration is upon the turitten contract; the breach alleged in the first count, is that the defendant “failed and refused to forward more than 814 barrels of said quantity of said 3000 barrels of apples, and made default as to the residue.” And in the second count, the breach alleged is a failure “to transmit, or to deliver the same to the Baltimore and Ohio Railroad Company to be forwarded” to the plaintiffs. It was proved that the appellant proceeded to forward apples by the Baltimore & Ohio Railroad, commencing on the 28th day of November, and continuing till the 5th day of December 1871; sending during that period six car-loads; the last two of which arrived in Bal[406]*406timore on. the 8th of December, and were paid for on the 11th. No more were sent on till about the middle of January 1872, when a car-load was forwarded, which the plaintiffs refused to receive, they having greatly fallen in price in the Baltimore market at that time. It was proved that apples usually bring the highest prices in the latter-part of December, just before Christmas, and that the market value of sound apples in Baltimore between the first of December 1871, and the middle of January following was from $4 to $5' per barrel. Proof was offered that the weather became extremely cold about the beginning of December, and' so continued during the period above mentioned, rendering it impossible to forward apples safely, or without great danger of their destruction, and “that the business of shipping from that vicinity was closed by the severely cold weather.”
Construing the written contract according to its terms, and in the light of surrounding circumstances, it imposed the duty upon the appellant as vendor, within a reasonable time, to send forward the apples to the plaintiffs, at a rate not exceeding one car-load a day, and the fact that cold weather came on. making it difficult or impossible to transport them-in safety, would furnish no excuse for the failure to forward them according to the terms of the contract. “If the thing promised be possible in itself, it is no excuse that the promiser became unable to perform it, by causes beyond his own control, for it was his own fault to run the risk of undertaking unconditionally, to fulfil a promise, when he might have guarded himself by the terms of his contract.” Benjamin on Sales, 456, (2nd London Edition,) where the cases in support of the proposition are cited in the notes. In the same book, 135 and 572, it is said: “Where the vendor is bound to send the goods to the purchaser, the rule is well established, that delivery to a common carrier, ******** is a delivery to the purchaser himself, the carrier being [407]*407in contemplation of law in such cases, the bailee of the person to wham not by whom the goods are sent; the latter when employing the carrier, being regarded as the agent of the former for that purpose.” This rule has been recognized by this Court in Magruder vs. Gage, 33 Md., 344.
Treating the written agreement of November 23rd 1871, as the only contract between the parties, there would be no doubt of the correctness of the first, second and third prayers of the appellees ; but it appears that parol testimony was given on the part of the plaintiffs, to prove that on the same day upon which the written contract was made, and subsequently thereto, a verbal agreement w'as made between the parties, that the apples instead of being forwarded to the plaintiffs, should be sent by the appellant, consigned to Krevtzer Brothers, in Baltimore, and upon the payment by the appellees to Kreutzer Bros, of the stipulated price therefor, the bills of lading should be handed over to them, and thereupon they should receive possession of the apples at the depot, upon paying the freight to the railroad company. The effect of this arrangement was materially to alter the terms of the written contract, and the question arises was it competent and admissible testimony under the pleadings in the cause ? The declaration is upon the written agreement alone, and sets out a contract of sale, with an obligation on the part of the defendant to forward to the plaintiffs, and a breach of that obligation ; whereas, by the supplementary agreement, the obligation on the defendant wras to consign the apples to Kreutzer Bros., to be delivered by them to the plaintiffs. By the contract declared on, the obligation rested on the appellant to forward to the plaintiffs, and wmuld have been performed by delivering the apples to a carrier, in merchantable condition, taking the usual precautions to ensure their safe delivery to the buyers, the risks of the carriage being assumed by the latter.
[408]*408Whereas the effect, of the supplementary agreement was to constitute the consignees, Kreutzer Bros., the agents of the appellant, to receive and hold the property for him, until the payment by the appellees of the price, and then to deliver the possession of the same to the appellees in Baltimore. Under this arrangement, the delivery to the carrier would not be a delivery to the appellees, but' the carrier became thereby the agent of the appellant, (vendor) and thé risks of the carriage were assumed by the latter. Benjamin on Sales, 572.
,. The parol evidence of the supplementary agreement was admitted subject to exception. No objection to its admissibility was made by the defendant in the Court below or in this Court, on the ground that the contract was within the 17th section of the Statute of Frauds, and could have been proved only in writing, and no such objection could have been successfully made, for the reason that a part of the goods having been received and accepted by the vendees, it was competent to prove the contract by parol evidence.
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Bartol, C. J.,
delivered the opinion of the Court.
This suit was brought by the appellees, to recover damages for the alleged breach by the appellant, of a contract for the sale and delivery of a quantity of apples.
The contract which was in writing, was as follows :
[405]*405“Baltimore, November 23rd, 1871.
“This is to certify, that I, A. Kribs, agree to furnish Lewis Jones & Son, with what apples I have on hand, at two dollars and fifty cents per barrel, say about three thousand barrels, he to pay my drafts at the bank as he receives the apples, not exceeding one car-load a day.
“In consideration of the above agreement, Lewis Jones & Son, agree to pay A. Kribs, three notes, five hundred and forty-three XW dollars each, at fifteen, thirty and forty-five days.” (Signed)
Lewis Jones & Son,
A. Kbibs.
The explanation of the latter part of the agreement referring to the notes, as furnished by the proof, is that there was an unsettled balance due from the appellees to the appellant, for apples purchased under a previous contract, which it was agreed should be secured by three promissory notes, endorsed by third persons, and the giving of which formed a part of the consideration inducing the appellant to enter into the contract of November 23rd 1871.
The appellant was a forwarding, commission and produce dealer, living at Norwalk, Ohio; the appellees were produce merchants doing business in Baltimore.
The declaration is upon the turitten contract; the breach alleged in the first count, is that the defendant “failed and refused to forward more than 814 barrels of said quantity of said 3000 barrels of apples, and made default as to the residue.” And in the second count, the breach alleged is a failure “to transmit, or to deliver the same to the Baltimore and Ohio Railroad Company to be forwarded” to the plaintiffs. It was proved that the appellant proceeded to forward apples by the Baltimore & Ohio Railroad, commencing on the 28th day of November, and continuing till the 5th day of December 1871; sending during that period six car-loads; the last two of which arrived in Bal[406]*406timore on. the 8th of December, and were paid for on the 11th. No more were sent on till about the middle of January 1872, when a car-load was forwarded, which the plaintiffs refused to receive, they having greatly fallen in price in the Baltimore market at that time. It was proved that apples usually bring the highest prices in the latter-part of December, just before Christmas, and that the market value of sound apples in Baltimore between the first of December 1871, and the middle of January following was from $4 to $5' per barrel. Proof was offered that the weather became extremely cold about the beginning of December, and' so continued during the period above mentioned, rendering it impossible to forward apples safely, or without great danger of their destruction, and “that the business of shipping from that vicinity was closed by the severely cold weather.”
Construing the written contract according to its terms, and in the light of surrounding circumstances, it imposed the duty upon the appellant as vendor, within a reasonable time, to send forward the apples to the plaintiffs, at a rate not exceeding one car-load a day, and the fact that cold weather came on. making it difficult or impossible to transport them-in safety, would furnish no excuse for the failure to forward them according to the terms of the contract. “If the thing promised be possible in itself, it is no excuse that the promiser became unable to perform it, by causes beyond his own control, for it was his own fault to run the risk of undertaking unconditionally, to fulfil a promise, when he might have guarded himself by the terms of his contract.” Benjamin on Sales, 456, (2nd London Edition,) where the cases in support of the proposition are cited in the notes. In the same book, 135 and 572, it is said: “Where the vendor is bound to send the goods to the purchaser, the rule is well established, that delivery to a common carrier, ******** is a delivery to the purchaser himself, the carrier being [407]*407in contemplation of law in such cases, the bailee of the person to wham not by whom the goods are sent; the latter when employing the carrier, being regarded as the agent of the former for that purpose.” This rule has been recognized by this Court in Magruder vs. Gage, 33 Md., 344.
Treating the written agreement of November 23rd 1871, as the only contract between the parties, there would be no doubt of the correctness of the first, second and third prayers of the appellees ; but it appears that parol testimony was given on the part of the plaintiffs, to prove that on the same day upon which the written contract was made, and subsequently thereto, a verbal agreement w'as made between the parties, that the apples instead of being forwarded to the plaintiffs, should be sent by the appellant, consigned to Krevtzer Brothers, in Baltimore, and upon the payment by the appellees to Kreutzer Bros, of the stipulated price therefor, the bills of lading should be handed over to them, and thereupon they should receive possession of the apples at the depot, upon paying the freight to the railroad company. The effect of this arrangement was materially to alter the terms of the written contract, and the question arises was it competent and admissible testimony under the pleadings in the cause ? The declaration is upon the written agreement alone, and sets out a contract of sale, with an obligation on the part of the defendant to forward to the plaintiffs, and a breach of that obligation ; whereas, by the supplementary agreement, the obligation on the defendant wras to consign the apples to Kreutzer Bros., to be delivered by them to the plaintiffs. By the contract declared on, the obligation rested on the appellant to forward to the plaintiffs, and wmuld have been performed by delivering the apples to a carrier, in merchantable condition, taking the usual precautions to ensure their safe delivery to the buyers, the risks of the carriage being assumed by the latter.
[408]*408Whereas the effect, of the supplementary agreement was to constitute the consignees, Kreutzer Bros., the agents of the appellant, to receive and hold the property for him, until the payment by the appellees of the price, and then to deliver the possession of the same to the appellees in Baltimore. Under this arrangement, the delivery to the carrier would not be a delivery to the appellees, but' the carrier became thereby the agent of the appellant, (vendor) and thé risks of the carriage were assumed by the latter. Benjamin on Sales, 572.
,. The parol evidence of the supplementary agreement was admitted subject to exception. No objection to its admissibility was made by the defendant in the Court below or in this Court, on the ground that the contract was within the 17th section of the Statute of Frauds, and could have been proved only in writing, and no such objection could have been successfully made, for the reason that a part of the goods having been received and accepted by the vendees, it was competent to prove the contract by parol evidence. The case stands in this respect'free from difficulty under the Statute, and in. a proper state of the pleadings, the parol evidence would be admissible to prove that the original contract, though in writing, had been afterwards modified or changed by a supplementary verbal agreement. Allen vs. Sowerby, 37 Md., 411. But the difficulty arises from the state of the pleadings. The appellant’s sixth prayer asserts that “ under the pleadings in this cause, no evidence is admissible of a contract by the defendant., to deliver apples to the plaintiffs in Baltimore, and all evidence of that kind must be disregarded ” by the jury. This prayer was refused, and we think erroneously. The declaration being based exclusively upon the written agreement, which as we have said, was a contract to forward ; • evidence was inadmissible to prove the supplementary agreement, whereby the appellant undertook to deliver the apples to the plaintiffs in Baltimore, through his agents, Kreutzer Brothers.
[409]*409It is no answer to this objection, that the defendant in the Court below, himself offered parol testimony of the supplementary agreement. He did not thereby waive his right to object to the testimony of that kind offered by the plaintiffs, all of which, as it appears by the bill of exceptions had been received, “ subject to exception to be subsequently taken.” We construe this to mean that the exception was to be raised by prayer after the evidence was closed.
With respect to the fourth prayer of the appellees, that was erroneous in submitting to the jury t.o find, that the appellant had agreed absolutely to ship the apples at, the rale of one car-load a day. There was no competent evidence that such was the contract, this part of the prayer rested upon the testimony of Dixon, with reference to the subsequent parol agreement, it was received subject to exception, and was inadmissible under the pleadings, exception was taken thereto by the appellant’s seventh prayer, and it ought to have been excluded from the consideration of the jury. In other respects, the propositions of law contained in the appellees’ fourth prayer, would, in a proper state of the pleadings be free from objection. This prayer was based upon the contract as modified by the subsequent parol agreement, and the defendant’s prayers, which were refused are all, except the sixth and seventh, based upon the contractas modified, and assert two leading propositions ; first, that the defendant was not bound in law to continue to forward the apples, after the cold weather came on, which made it imprudent or dangerous to transport them. Secondly, that tire risk of safe transportation was upon the plaintiffs, and therefore in fixing the measure of the damages, it was proper for the jury to consider the probable deterioration the fruit would have suffered on the route, and give the plaintiffs as damages, no more than the difference between the market value of apples so deteriorated and the contract price.
[410]*410(Decided 9th March, 1876.)
But the answer to both these propositions is that by the 'contract as modified the defendant undertook to deliver the apples in a reasonable time to the plaintiffs in Baltimore, through his ag'ents Kreutzer Brothers.
By this agreement he assumed the risk of their safe transportation, and having assumed this obligation absolutely, and without qualification, he cannot he excused from its performance, because of the state oí' the weather; nor does the consideration of the risk of transportation enter into the estimate of the measure of damages, which is correctly stated in the plaintiffs’ fourth prayer.
The only error we find in the ruling of the Superior-Court, of which the appellant can complain was in rejecting his sixth and seventh prayers ; for the reason before stated that the declaration was on the written contract alone.
What has been said sufficiently disposes of the several prayers offered by the appellant, and they need not he referred to more particularly.
Judgment reversed, and new trial ordered.