Pearce, J.,
delivered the opinion of the Court.
This is an action of
assumpsit
by the appellees to recover for 500 cases of canned tomatoes sold and delivered to the appellant. Both parties are packers of canned goods residing .in Dorchester County, Md., the plaintiffs at Cambridge, and the defendant at East Newmarket. The memorandum of the contract, executed in duplicate, is as follows:
“Bought of Mess. P. W. Moore & Son, Cambridge, Md.
For account of Mr. Chas. Webster, East Newmarket, Md. 2,000 c’s No. 3 Standard Tomatoes at 77^c per dozen f. o. b. Cambridge, Md. Cash less 1
yi %
in ten days from prompt shipment. Buyers labels to be put on free with an allowance of 90c per M. Subject to approval of samples submitted on September 8th, 1906. Prompt shipment of labels.
h Accepted this 8 day of September, 1906. Chas.
Duplicate l Webster' Buyer'
P j Accepted this 8 day of September, 1906. P. W.
J Moore & Son, Seller.”
The sale wes made through Edgar B. Simmons, a canned goods broker, of Cambridge. The samples mentioned in this contract were duly submitted, and were approved on Tuesday following the 8th of September. Some days later, one case of 24 dozen cans No. 3 standard tomatoes were gotten by Simmons from the plaintiffs, to be.used as samples by defendant in a contemplated sale by him to Austin Nichols & Co. of New York, but it does not appear that the plaintiffs knew to whom these smples were to be sent.
On September 14th the plaintiffs received a letter of that date, purporting to be signed by Simmons, but written and signed in his absence, and without his knowledge, by a clerk
in his office, saying, “I am in receipt of a letter today from Mr. Chas. Webster, saying the samples you sent him were not approved, as they were watery and juicy, and requested me to see you and get you to send him more samples. So please send him another lot of samples at your earliest convenience, and oblige yours truly.”
Between September 8th and 14th the price of canned tomatoes had materially advanced.
On September 15th, the plaintiffs wrote Simmons, “Yours of the 14th inst. received, saying that Chas. Webster did not approve the samples sent him; that they were too juicy; and as the contract claimed approval of samples, and prompt delivery of labels which have not yet arrived, we therefore deem the contract broken, and the aforesaid instrument is null and void. P. W. Moore & Son.”
On September 18th Webster and Simmons went together to see plaintiffs ahout the performance of the contract, and Webster told them he had not rejected the tomatoes, and insisted on their delivery; that Austin Nichols & Co., to whom the last samples had been sent, had nothing to do with the contract in question; that he, Webster, was the purchaser and was perfectly satisfied with the tomatoes; that he then proposed the tomatoes should be delivered in car lots — 500 case lots — f. o. b. Cambridge, payment for each car to be made on receipt of bill of lading (thus modifying the terms of the memorandum of sale). The plaintiffs did not then agree to this proposal, but did so agree on the following day, and so notified Webster by ’phone, and that the memorandum of September 8th was to be the guide as to kind and quality of goods. Two car loads of 500 cases each were accordingly shipped on October 2nd and 8th respectively, and payment therefor was made on receipt of bill of lading.
A third car load was shipped on October 23rd, and bill of lading mailed to Webster, who refused to pay the contract price therefor, because he claimed to have discovered since paying for the two car loads, that neither these, nor the third car were of the contract quality, whereupon the plaintiffs re
fused to deliver the fourth car, though Webster demanded delivery thereof. The present suit is for the contract price of the third car, and for the last mentioned case of samples. Webster claims to recoup against the price of the third car, the damages resulting from the alleged inferiority of all three cars and from the non-delivery of the fourth car.
The
nar
contains only the common counts and the pleas are the usual general issue pleas. The verdict and judgment being for the plaintiffs for the contract price of the third car load, and for the value of the last case of samples, the defendant has appealed. Sixteen exceptions were taken, fifteen to rulings upon evidence, and one to the ruling on the prayers.
The first exception was to the admission of the letter of Simmons of September 14th above quoted, in connection with the offer to show that Simmons was defendant’s agent. Simmons himself testified that he represented both parties as broker, though his brokerage was paid by the plaintiff in accordance with the custom in such transactions. The manifest purpose of the introduction of this letter by the plaintiff was to lead the jury to believe, as the plaintiff may have believed, .that Webster had rejected the samples submitted September 8th as the standard for the 2,000 cases then purchased, and thus to justify the plaintiffs in their attempted cancellation of that contract. Staniing alone, and unexplained, it certainly tended to support the plaintiffs view, and we perceive no error in its admission.
After Perry W. Moore, one of the plaintiffs, had given his version of the transaction on examination in chief, his counsel then asked him, “What does Mr, Webster owe you ?”■ to which question the defendant objected, but the Court overruled the objection, and after exception taken by defendant, the witness answered, “He owes us for 501 cases of tomatoes at 77%c per dozen.” This constitutes the second exception, the ground being that the purpose of the question and •the result of the answer permitted, was to enable the witness to give his opinion and decision upon the precise question .which was for the determination of the jury from a consider
ation of all the facts and circumstances in the cáse. If such' was the purpose and effect of the question and answer, the-ruling would be erroneous, as was held in
Belt R. R. Co. v. Sattler,
100 Md. 335, and in
Western U. Tel. Co.
v. Ring, 102 Md. 681. But we do not think such was either the purpose or effect of the answer elicited. There was no dispute here that 501' cases of tomatoes had been sold at 77 c per dozen, had been delivered, and had not been paid for in whole or in part. The only open question under the pleadings and • evidence for the determination of the jury, was what abatement, if any, the defendant was entitled to from the contract price of these 500 cases, by reason of the alleged inferiority of the 1,500 cases delivered, and the non delivery of the remaining 500 cases, The question, we think, was equivalent to-asking what the plaintiff claimed to have been delivered, and not paid for, and the answer given would have been strictly appropriate and responsive to such a question. Viewed in that light, this exception bears no analogy to those in the two-cases relied on and cited above, and is not within the reason on which they were decided. It would be a narrow and arbitrary construction of that question and answer to hold that there was reversible error in their admission.
The third and fifth exceptions raise but one question. In the third, Simmons was asked “what was the value at Cambridge of No. 3 standard tomatoes, f. o. b. cars on September 8th, 1906,” for the purpose of showing that the contract price was the full market price. The plaintiff objected, but conceded that the contract price was the full market price that, day, and the Court sustained the objection.
In the fifth exception while the deposition of a Mr. Jessup,, taken under a commission, was being read, the following question was read, “What was the value of 3ft». standard-tomatoes at Cambridge f. o. b. September 8th, 1906.” The-answer in the deposition was, “75 cts.” The plaintiff objected, to the question; though the defendant stated he expected to-show by the answer that he had agreed to give a price equal to the market price of that day, and the Court sustained the.
objection on the ground that the matter thus proposed to be proved had already been conceded when the ruling on the third exception was made.
Upon principle it would seem that there ought not to be laid down a hard and fast rule compelling a party, against his will, to accept his adversary’s concession of a bare fact sought to be proved, in lieu of the evidence by which the fact is proposed to be established. There are, no doubt, cases in which no actual injustice would be worked by such a rule, but there are others in which the .strength of a proponent’s case would be greatly weakened by its application.
The appellant has cited four cases in support of these exceptions, all from the Michigan Court, viz.:
John Hancock Co.
v.
Moore,
34 Mich. 41;
Kimball Co.
v.
Vrooman,
35 Mich. 310;
Decamp v. Schofield,
75 Mich. 449, and
Baumier
v.
Antiau,
79 Mich. 509.
In the first and second of these cases the concession would have operated to exclude record or documentary evidence. In the third, it was held that the conceding of a valuable consideration for a written promise, cannot deprive the promisor of the right to prove what the consideration was; and in the fourth it was held that though the defendant offered to admit that the plaintiff was kept out of possession of certain premises by him, plaintiff was entitled to give evidence of the fact and of the attending circumstances, the Court in that case using this emphatic language: “The right of a plaintiff to present his proof to the jury in his own way, subject to the rules of evidence, is a substantial and important one, of which he cannot be deprived by the proffered admission of the defendant.” If this is the plaintiff’s right, it is equally the defendant’s right —the rule must be applicable to both parties alike. We have not been referred to any other decisions in point, and we have discovered none, nor have we found any consideration of this question in the text books or encyclopedias. The excluded answer showed that the contract price was 2j^c above the market price of that day, and thus illustrates the obvious difference in effect in some cases between a naked concession of
a fact, and the production of the evidence by which the fact is proposed to be established. We have not had pointed out to us any specific injury worked to the defendant in this case, by, the ruling complained of, and in the absence of injury the error cannot be held reversible; but we cannot give our sanction to the laying down of a general rule which would deprive a party of his right to produce to the jury in his own time and way the evidence upon which he relies, and which is legally admissible for that purpose.
The seventh, eighth, tenth, eleventh, thirteenth, fourteenth and fifteenth exceptions may be considered together. They all relate to the admission of testimony by which the plaintiff sought to show that the 1,500 cases delivered were No. 3 standard tomatoes such as the contract specified.
In the seventh, one of the plaintiffs was asked to state “how they packed their tomatoes in 1906, and the grade and quality of the whole pack for that year.” The answer was that the whole pack was by hand, by girls, who weighed 34 oz. of tomatoes in each can; that witness personally supervised this packing, and that each day’s pack was^ examined as packed, and that all were standards No. 3 of fair quality, except the last day’s pack which were kept in a separate house, and none of which were delivered to the defendant.
The eighth exception relates to 400 cases labelled with defendant’s labels and designed for delivery to him as part of the fourth car load, not delivered, because of his refusal to pay for the third car load. The same witness (Moore) was allowed to state that these 400 cases were packed for Webster and taken from the same pile from which the three car loads were taken.
In the tenth exception, the same witness after stating that he had 2,600 cases on hand at the end of the packing season and that Wm. E. Hearn examined samples from these, including the 400 cases aboved mentioned, was allowed to state that some of the samples examined by Hearn were from the same lot from which the 1,500 cases delivered to the defendant were taken, this answer being allowed upon condition that it should be followed up by Hearn’s own testimony upon that point.
In the eleventh exception the same witness was allowed to: say that the quality of the samples examined by Hearn were all fair standards.
' In the thirteenth exception Hearn was allowed to confirm Moore’s statement in the eleventh.
■ In the fourteenth exception during the reading of the deposition of Thos. J. Burke, a canner^of Duluth, it appeared that he was the vice-president and buyer for a canning company of that city, and bought from the plaintiff in July, 1907,. 500 cases of Springfield brand canned tomatoes, and was allowed to state that he found them “satisfactory.” And in. the fifteenth exception he was allowed to say these tomatoes were good quality of standards, thus explaining what was meant by the term “satisfactory.”
It is plain that the purpose of this testimony was to show that the 1,500 cases delivered were of the character and quality-' required by the contract. The objection made to all this testimony is that the issue in the case was the quality and character of the 1,500 cases delivered, and that this could not be established either by evidence as to the method pursued in the packing of that year, or by evidence as to the quality of any other part of the pack of that year, but after a careful consid-' ei'ation of this objection we do not think it should be sustained.. It was not in the power of the plaintiffs to produce the tomatoes delivered to the defendant, and the evidence they offex-ed was the best evidence obtainable.
Ames
v.
Quimby,
106 U. S. 342. If they were not permitted to introduce that evidence,, their mouths were sealed, except to affirm merely that the goods, complied with the contract. Sui'ely evidence that the plaintiffs, packed but one grade and quality of goods that year, and this designated No. .3 standard; that the work was done by competent and careful employees, and under constant and careful-supervision; and that a disinterested and competent person examined samples from all the 2,600 cases packed in addition-to the 1,500 cases sold to the defendant, and pronounced them all to be good" No. 3 standards, afforded some reasonable-ground for the belief that they were all of the same grade and.
quality, and constituted information which ought not to have been withheld from the jury, and in our opinion there was no error in these rulings.
The fourth and sixth exceptions were taken to the exclusion of the following letter offered in evidence by the defendant.
“East Newmarket, Md. 9-13 - 1906. Mr. E. B. Simmons, Cambridge Md,
Dear Sir:
I enclose a letter received today from Austin Nichols & Co. concerning those samples sent by P. W. Moore. Surely those samples could not have been like those cut in your office. I regret that Austin Nichols & Co. should fail to approve these samples, as it may cause some delay in getting them out. However if Mr. Moore will send me another case of samples, I will see what I can do in other directions.
Yours truly, Chas. Webster.”
It is apparent that this letter is the same referred to by Simmons in his letter of September 14th which had been previously admitted, and it at least tends to prove, if it does not conclusively prove, that the samples referred to in the letter of the 14th, inst. were not those sent with the contract in suit, but were those subsequently furnished, and sent to Austin Nichols & Co., not being connected in any way with this contract. The letter of the 14th, written by a clerk of Simmons, without his knowledge, or that of Webster, unexplained by this letter, tended to show an attempt by Webster to reject samples he had already approved as the basis of this contract, and it was offered with that purpose, in order to justify the plaintiffs in their proposed cancellation of the contract of the 8th inst. Simmons acted as agent for both parties in that transaction, and fairness requires that this letter of Webster to him, as such agent, should be admitted in explanation of Simmons letter of the 14th inst. The principle which so requires was applied in
Roe
v.
Day,
7 Car & Payne, 705, and in
Watson
v.
Moore,
7 Car & Kirwan, 627, cited in note to
Greenleaf on Evidence,
vol. 1, sec. 201.
In the latter case, a letter from defendant’s attorney pur
porting to be an answer to a letter to him from plaintiff’s attorney, previously admitted, was objected to by the plaintiff but was admitted by Chief Baron Pollock, who said, “If you do not like to put in the letter of Messrs Frankum & Bartlett to which this is an answer, you should not give this .letter in evidence. You should either put in both the letters or neither.”
We think there was error in these rulings. The appellees contend that if admitted, it could not have affected the issues on any point, and was therefore not reversible error. But that ruling left the defendant under the imputation of bad faith in attempting to revoke his previous approval of the samples of the 8th inst, and it is impossible to determine how far his imputation may have affected the jury in their consideration of the defendant’s good faith in his subsequent assertion that the three car loads delivered were inferior in quality to the samples by which they were sold.
The ninth and twelfth exceptions may be’ considered together.
In the ninth, Perry W. Moore was allowed to state that the 400 cases labelled for Webster but not delivered because he . failed to pay for the third car, were subsequently sold to parties in Minnesota
“as
standard No. 3 tomatoes and were accepted by them as such.”
In the twelfth, the same witness was allowed to state that in addition to the 1,500 cases delivered to the defendant, he packed that year 2,600 other cases, and had sold all these
“for
No. 3 Standards, and at No. 3 Standard Prices,” without complaint as to any.
The issue involved in these exceptions was the quality and , grade of the 1,500 cases delivered to Webster, and this could not be established by proof that
any
other part of their pack was sold and delivered
as
standards, even though without complaint by the purchaser. Selling an article
as
of certain grade and quality, is far from proof that it actually
was
of such grade and quality, and the evidence in this case shows that subequent to Webster's purchase the market price of canned
goods advanced largely, and so remained for a considerable period, a circumstance which always goes far to remove slight objections to defects, and to reconcile purchasers to contracts which they might otherwise seek to repudiate.
We think under the seventh, eighth, tenth, eleventh, thirteenth, fourteenth and fifteenth exceptions, the plaintiffs were allowed full latitude as to the proof of the quality and grade of the goods delivered to the defendant, and that there was error in the ruling on the ninth and twelfth exceptions.
This brings us to the rulings on the prayers.
Only the sixth and tenth prayers of the plaintiffs, and the sixth and eighth prayers of the defendant were granted, and by these we think the case was fairly and fully submitted to the jury. The defendant’s sixth prayer is not important, but the granted prayers will be set out by the reporter.
The defendant objects to the plaintiff’s granted prayers, on two grounds; first, that they ignore the right claimed by the defendant to recoup for damages growing out of the plaintiff’s failure and refusal to deliver the fourth car of tomatoes, after defendant’s refusal to pay for the third car delivered; and second, because he alleges that these two prayers do not direct or permit .any allowance for the 12,000 labels used in the third car.
The first objection is disposed of by the case of
Baltimore City
v.
Schaub,
96 Md. 535, and
McGrath
v. Gegner, 77 Md. 331. These cases determine that where a contract for the sale of goods to be delivered at successive periods, provides for payment at stated times after such deliveries, then if payment for goods delivered, is refused, such refusal is a breach of contract which justifies the seller in refusing to make further deliveries, and in an action by him to x-ecover the price of goods delivered, the buyer is not entitled to recoup damages for failure to make further deliveries.
The second objection we do not think should prevail.
The tenth prayer, properly viewed and interpreted, contemplates the proper allowance for labels; it refers to the contract price, and the essential element of the contract price is the allowance provided by the contract for the labels.
The sixth prayer is defective in neither expressly providing for this allowance, nor in impliedly so providing, by reference to the contract, and if the verdict did not cure this defect, it would be ground for reversal if that was the only granted prayer. But it will be seen on reference to the verdict, and an examination of the calculation by which it was reached, the allowance for labels was made by the jury. Their verdict was rendered November 15th, 1907, for the sum of $813.22.
It was reached in this way:
1,000 dozen cans @77%c per
dozen............$77 S-
1 case samples 2 doz. cans
@77%
c per dozen....... 1.55
$776-55
Credit allowance for 12,000 labels on 12,000 cans. . . 10.80
$765-75
The contract provided for an allowance of ten days for cash payment. The third car was shipped Oc. 23,
1906 so that interest should begin on Nov. 3, 1906.
Interest on $765.75 from Nov. 3, 1906, to date of verdict, Nov. 15, 1907........................ 47-47
$813.22-
which is the exact amount of the verdict rendered.
This demonstrates that the jury were not misled either by-the omission of any reference in the sixth prayer to the allowance for labels, or by the obscurity of the reference thereto in. the tenth prayer, and that they did in fact make the proper-allowance therefor. There was thus no injury worked by either of these prayers.
The defendant’s sixth and eighth prayers' which were granted gave them all the law to which they were entitled.
The appellant’s first prayer asserted that there was no legally sufificient evidence to show that the terms of the original contract were ever changed, and the seventh that there was no legally sufficient evidence under the pleadings to entitle the plaintiff to recover. These were not argued either orally or in,
the appellant’s brief, and were presumably abandoned. In any event they were properly rejected. The remaining prayers of the defendant all denied the plaintiff’s right of rescission and were properly rejected.
For the errors in the rulings on the fourth, sixth, ninth and twelfth exceptions the judgment must be reversed.
Judgment reversed with costs to the appellant above and
below,
and new trial awarded.