
    CANTON LUMBER COMPANY vs. WM. A. LILLER.
    
      Inconsistent Instructions to Jury—Measure of Damages for Breach of Contract to Supply Certain Kinds of Lumber— Evidence of Statements of Third Party.
    
    When the question is whether a quantity of lumber, which was sold as being in conformity with certain specifications, was rejected by the inspectors because not in conformity with those specifications, or because not in accordance with the inspectors’ view of its fitness apart .from the specifications, a prayer instructing the jury that there is no evidence of fraud or bad faith on the part of the inspectors is not in conflict, so as to mislead the jury, with another prayer, instructing them that the inspection should have been made, not in accordance with, the inspectors’ view of the fitness of the lumber for the purpose in hand, but in accordance with the specifications.
    A judgment will not be reversed on account of inconsistency between granted instructions unless it be such as may reasonably be supposed to have misled or confused the jury.
    In an action to recover damages for breach of defendant’s contract to deliver lumber of a designated kind, at a certain time and place, to be used by the defendant in building a coal tipple, etc., for a railway company, the plaintiff is entitled to recover the expenses caused by the delay in getting other lumber in place of that furnished by the defendant and rejected for cause; the increased cost of construction by reason of the necessity of doing the work in the winter instead of in the summer; the freight paid by the plaintiff on the rejected lumber, and the cost of unloading the same. These elements of damage may reasonably be supposed to have been within the contemplation of the parties at the time of making the contract.
    Plaintiff bought a quantity of lumber from defendant under a contract which required it to be inspected according to certain specifications by the agent of a third party, for whose structure plaintiff was to use the lumber. Held] that evidence of this agent’s declarations is not admissible in an action for breach of the contract since .he was not the plaintiff’s agent.
    
      Decided January 11th, 1910.
    
    Appeal from the Baltimore City Court (Dobler, L).
    
      Defendant’s 1st Prayer.—If the jury believe from the evidence that the plaintiff entered into a contract with the defendant whereby the defendant was to deliver on cars at the City of Baltimore four hundred and ten thousand feet of lumber, according to certain specifications written upon the blue print offered in evidence, of certain specified lumber which had to be of special sizes and lengths, and which had to be prepared and cut to be used for a special purpose and in conformity with a memorandum of certain sizes and lengths, and to be used by the plaintiff in the erection of a coal tipple, sand house, etc., which had been specially designed by the Baltimore and Ohio Bailroad as described in the evidence, at the round price of twenty dollars per thousand feet, and if planed on one or two sides fifty cents additional per thousand feet, and if planed on three or four sides seventy-five cents per thousand additional, and that the defendant did cut and cause to be prepared the lumber of the dimensions and lengths as mentioned in the revised list furnished by the plaintiff, and loaded the same upon cars at the City of Baltimore and consigned the same to the plaintiff at Eeyser, West Virginia, and if the jury shall further find that after the destination of said lumber the same was by the agents of the Baltimore and Ohio Bailroad inspected at a higher standard of quality than that laid down upon the blue print specifications offered in evidence, or if the jury shall believe that the B. & O. inspectors inspected the lumber from their own ideas of its fitness for the purposes for which it was to' be used, and did not inspect it by the specifications written iipon the blue print offered in evidence by which it was sold, then the inspection was not in accordance with the contract of sale, and their verdict must be for the defendant. {Granted.)
    
    
      Defendant’s 2nd Prayer.—The defendant prays the Court to instruct the jury that if they believe from the evidence that the plaintiff entered into a contract with the defendant whereby the defendant was to prepare, cut and saw certain specified lumber of certain dimensions and lengths which was intended to be used for a special purpose in the erection of-a coal tipple, etc., for the Baltimore & Ohio Bailroad at Eeyser, West Virginia, as testified to by the plaintiff, and that-the defendant did saw and cut the lumber of these dimensions and lengths as required by the revised list delivered, by.the plaintiff to defendant, and the defendant did load the same on board cars at the City of Baltimore and consign the same to, the defendant at Eeyser, West Virginia, amounting in„the aggregate to-four hundred and ten thousand .feet, at • and for the round price of twenty dollars per thousand, and that some of the lumber so cut and delivered was of greater • value because of its quality and lengths, and other parts thereof so sawed, cut and delivered were of a lesser value than twenty dollars per thousand, and if they shall further find that upon the destination of the lumber the plaintiff unloaded' the same and a part thereof was cut up and used by the-plaintiff in the erection of the trestle work (a part of the coal tipple contract with the Baltimore & Ohio Railroad), without the consent of the defendant to such user, that such ■ act on the part of the plaintiff was an accptance of the whole quantity of lumber shipped and unloaded, notwithstanding upon inspection thereof by the B. & O. inspectors, the whole ■ of said lumber was condemned, then their verdict must be for the defendant. (Refused.)
    
    
      Defendant’s 3rd Prayer.—The defendant prays the Court to instruct the jury that if they shall believe from the evidence that the plaintiff entered into a contract with the defendant, whereby the defendant was to deliver on cars at the City of Baltimore, four hundred and ten thousand feet in ■accordance with certain specifications written upon the blue print offered in evidence, certain specified lumber, which had to be of special sizes and lengths, and which had to be'prepared and cut to be used for a special purpose and in conformity with a memorandum of certain siz’es and lenghts, and to be used by the plaintiff in the erection of a coal tipple, sand house, etc., which had been specially designed by the Baltimore & Ohio Railroad as described in the evidence, fit the round' price of twenty dollars per thousand, and if planed on one or two sides, fifty cents additional per thousand, arid if planed on two or three sides, seventy-five cents per thousand additional, and that the defendant did cut and cause to be prepared lumber of the dimensions and lengths as men' tioned in the revised list furnished by the plaintiff, and 'loaded the same on cars at the City of Baltimore, and consigned the samé to the plaintiff at KÍeyser, West Virginia, and that said'lumber did conform to the specifications written upon said blue print, and shall further find that the defendant did not sell and agree to deliver the lumber subject to B. & O. inspection, if they shall so find, then their verdict must be for the defendant, notwithstanding the lumber was condemned by the inspectors of the Baltimore & Ohio Bail-road. (Granted.)
    
    The cause was argued before Briscoe, Pearce, Schmucker, Burke and Thomas, JJ.
    
      Charles E. Siegmund and James McEvoy, Jr., (with whom were Willis & Ilomer on the brief), for the appellant.
    
      Alenzo L. Miles■ (with whom were Wm. E. Ambrose and Luther E. Maclcall on the brief), for the appellee.
   Pearce, J.,

delivered the opinion of the Court.

This is the second appeal in this case, the former appeal being reported in 107 Md., page 146, the defendant below being the appellant in both appeals. At the first trial the case was tried upon the general issue plea, and there was no change in the pleadings at the second trial. The declaration charged that Canton Lumber Company of Baltimore City agreed to sell and deliver to William A. Liller on or before July 1st, 1903, all the necessary lumber for the erection at Keyser, West Virginia, for the Baltimore and Ohio E. E. Co. of an ash pit, coal tipple and sand house, said lumber to conform to specifications set out in the declaration and to be subject .to the B. & O. E. E. Co’s, inspection; the plaintiff to pay for the lumber at the rate of $20 per thousand feet; but that the defendant did not deliver lumber conforming to said specifications, nor within the required time, and that the lumber delivered was inspected by the B. & O. E. E. Co. as provided, and was rejected as not complying with said specifications; and that because of said breach of contract the plaintiff was obliged to purchase in open market about 466,837 feet of lumber at a price in excess of that agreed upon between tbe plaintiff and defendant and to incur large additional expense on account of the delay in procuring other lumber, the whole loss to the plaintiff -being the sum of $8,961.21. That trial resulted in a verdict for plaintiff for $3,350.

In the opinion in the former appeal, the evidence, as it appeared in the record, was set out with much fullness, and' the appellee in the present appeal claimed, without contradiction by the appellant, that the evidence was substantially the same at the second as in the former trial. We have compared the records in this respect, and we have discovered nothing in the testimony in the present record which materially altered the presentation of the case.

On the former appeal we found no error in any of the rulings on the evidence, nor in granting any of the plaintiff’s prayers, nor in refusing any of the defendant’s prayers except its third prayer, which we held ought to have been granted, and the judgment was reversed solely for that error. In this appeal the plaintiff offered five prayers all of which were granted, being literal copies of prayers offered by the plaintiff granted at the former trial, and approved in the former appeal. These prayers are founded upon propositions of law which we still think correct, and are based upon legally sufficient evidence contained in the present record. These may be seen upon reference to the report of the former appeal.

The defendant’s first prayer in this case was granted, being substantially its third prayer in the former case which we there held should have been granted. It differs from the third prayer in the former case only in the introductory part, but asserts the precise legal proposition which we held correct in the former appeal and in the language which we there approved', viz: “and if they further find that said lumber was by the agents of the Balto. & Ohio Railroad inspected at a higher standard of quality than that laid down upon the blue print specifications offered in evidence, or if the jury shall believe that the B. & O. inspectors inspected the lumber from-their own. ideas of its fitness for the purposes fo; which it was-to be used, and did not inspeót it by the specifications written upon the blue print offered in evidence by which it was sold, then the inspection was not in accordance with the contract of sale and their verdict must be for the defendant.” The sole error which we discovered in the former trial was thus corrected in the second trial.

-./The defendant’s second and third prayers we shall request the reporter to set out fully. Its second prayer though differing somewhat in verbiage from its second prayer in the former' case presents the same legal proposition which' we considered- in the former case, and which we there held to he properly refused, viz, that the use of part of the lumber delivered : which did pass inspection was an acceptance by the plaintiff 0-f all the lumber delivered, and we find no reason upon this r.eargument'to alter our view in this regard. ’

•'-The defendant’s third prayer was also granted so that the only 'ground of objection so far as the prayers are concerned is tó'- the réjectión of its second prayer which we have said tvks pioperly rejected, and to'the granting-of the.plaintiff’s prayers which we have also said' were properly-granted.

; “At' the argument upon the prayers, Mr. Siegmund of - appellant’s' counsel "admitted that if the plaintiff’s first prayer. &nd‘ defendant’s first and third prayers had been the only instructions- granted, the' defendant would have had no cause of complaint, but it was contended that plaintiff’s- fourth píkyér, which Instructed'-the jury that' there was no legally sufficient evidence of fraud or bad faith on the part of the B- & O. R. R. Co.’s inspectors, was in conflict both with p'lainti'ff-’s first, and defendant’s first prayer.

’ -"-It is," of course, error to grant prayers which are inconsistent in theory, and by which therefore the jury must be misled.

■■ ’This objection was not made on the former appeal, though thé case was' vigorously contested throughout,' and the plaintiff’s first and fourth prayers were the same in both cases; 'aiid it- séems'to have been made here as an after thought, the granting of the defendant’s first prayer in this case having corrected the real ground of complaint in the former case. The fraud referred to in the plaintiff’s first and fourth prayers is wilful deliberate, fraud, originating in corrupt purpose to malte a dishonest inspection, but the jury were distinctly told by the defendant’s first prayer that if for any reason, the inspectors mistakenly and incorrectly inspected the lumber by a higher standard than that' provided by the blue print their verdict must be for' defendant. We can perceive no conflict in the prayers mentioned nor anything misleading to the jury. In Gary v. Sangston, 64 Md. 39, Judge Miller said: “Cases may no doubt be found in which this Court has reversed judgments on account of the granting of inconsistent instructions, but an examination of them will show that the instructions were such as to afford good reason for supposing they may have had the effect of misleading or confusing the minds of the jury; but in a case (like this) where there is no reasonable ground for such a supposition, it would be trifling with trial by jury and with-justice itself to reverse the judgment and deprive the plaintiffs-of the benefit of the verdict.” ' -

There were three exceptions to the' rulings on the evidence.

When the plaintiff was on the stand' he testified that it cost him to purcháse in open market the necessary luiPber to replace rejected lumber $2,683.43 over the contract price of the rejected lumber. He was' then• askéd to state just what his other damages, if any were, itemizing them as he pro-ceded, and objection to that question being overruled the first exception was taken. The objéetion would seem to have been prematurely taken, but it appears from the .record that the testimony which followed, and itemized the elements -of damage, was all regarded as subject to exception. The items of damage thus testified to, or the principal items were cost involved in the delay in getting lumber upon the ground in place of the rejected lumber, and-increased cost of construction by reason of the necessity of performing the work in the winter instead of the summer; freight-paid by the plain: tiff on condemned, lumber, not used, and cost of unloading same. The amount of all these items, the actual cost, was definitely stated—so that the jury was not left at large to indulge in speculation or guess work. The question thus raised therefore is whether these elements of damage may be reasonably supposed to have been within the contemplation of the parties at the time of making the contract. The general rule in ordinary cases by vendee against vendor for breach of contract to deliver goods, is that the measure of damages is the difference between the contract price and the market price at the time and place of delivery, but this rule is always subject to modification, where other damage necessarily or proximately incident to the breach of contract, can be held to have been in the contemplation of the parties. W. U. Tel. Co. v. Lehman, 107 Md. 448. In the case before us the defendant knew at the time the contract was made for what purpose the lumber was required, and how important it was that the lumber should conform in dimensions and' quality with the bill furnished and the specifications provided. The defendant contracted to deliver the lumber by July 1st, but did not complete delivery before the middle of August. After the lumber had been inspected and a large part of it rejected, it required time to purchase and assemble other lumber of the necessary dimensions and quality and the result was that instead of being able to complete the structures during good weather and long working days of summer and fall much of that work was done during the unfavorable weather and shorter days of winter, and on the former appeal we held in granting plaintiff’s seventh prayer that the jury might take all these matters into consideration. The plaintiff’s fifth prayer in the present case is a transcript of the seventh prayer in the former case and for the reasons stated we are of opinion it stated the correct measure of damages under the circumstances of the case.

The second and third exceptions may be considered together as they both relate to the exclusion of statements made by Mr. Alexander to Mr. Berryman, or conversations between them. Mr. Berryman was general manager of the defendant and he testified, “that during the inspection he had an interview with Mr. Alexander, who he understood represented the B. & O. and who had come to witness’ office and wanted to know where the lumber was that he was to inspect for the coal tipple for Mr. Liller; that witness directed him as requested to the works and that Mr. Alexander made an inspection.” Mr. Alexander is not shown to have been an agent of Mr. Liller. He was clearly the agent of the B. & O. to make its inspection, an inspection the result of which made in good faith hound both parties to this suit.” Alexander was not a party and had not testified in this case: neither was he the plaintiff’s agent in making this inspection, and therefore no question arises as to the right of Alexander to bind plaintiff by his statements made out of his presence and hearing. What he did in making this inspection the parties were entitled to know, and this the trial judge allowed. To have gone further, and allowed Alexander’s unsworn statements to he admitted in evidence would have been to admit mere hearsay, not brought within any of the exceptions to that rule, and there was no error in this ruling.

Judgment affirmed with costs to the appellee above and below.  