U... the court. This court should give such judgment as the Supreme SELDEN, J., expressed no opinion; all the other Judges concurring. RYLANCE v. JAMES WALKER CO. (Court of Appeals of Maryland, 1916. 129 Md. 475, 99 Atl. 597.) Action by James A. Rylance against the James Walker Company. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, Urner, STOCKBRIDGE, and CONSTABLE, JJ. THOMAS, J.14 In December, 1911, the appellee, the James Walker Company, of Baltimore, sent to the appellant, James A. Rylance, of London, England, an order for 47 coils of Hoth's Russian bolt rope at $13.50 per hundred pounds. In September, 1912, the appellant shipped to the appellee a different kind of rope and drew a draft on the appellee for the price, which the appellee paid in advance of the arrival of the rope. When the rope shipped arrived in Baltimore the appellee discovered that it was not the rope ordered, and immediately wrote the appellant accordingly, and stated that as the appellee had paid the draft in advance of the arrival of the rope, it would charge the amount of the draft against him, and hold the rope subject to his order pending receipt of shipping orders from him. The appellant in reply requested the appellee to dispose of the rope for him, and after further correspondence, the appellee wrote the appellant in April, 1913, that it had not been able to dispose of the rope for him, and that while it did not mind holding the rope for him until he (the appellant) could dispose of it, the appellee would like to have a check for the amount of the draft paid by it. On September 2, 1913, the appellee sent the appellant another order for 70 coils of bolt rope, to be shipped as soon as possible, “and in the usual way." At the same time the appellee again requested shipping instructions for the rope shipped to it in the fall of 1912, and which the appellee was holding for the appellant. The rope specified in the order of September 2, 1913, was shipped by the appellant to the appellee about the 5th of November, 1913, via steamship Potomac, and arrived in Baltimore about the 23d of December following. The appellant had the bill of lading made out to his "order," and sent the same, properly indorsed by him, with a draft for the price of the rope attached, to Hamilton & Co., Baltimore bankers, with directions "to turn over the bill of lading" to the appellee upon payment 14 Part of the opinion is omitted. of the draft. When the draft arrived, Hamilton & Co. presented the same, with the bill of lading attached, to the appellee and requested it to pay the draft and take delivery of the rope. The appellee refused to pay the draft unless the appellant would allow it to deduct therefrom the amount of the draft which the appellee had paid for the shipment made in 1912. The appellant declined to allow the deduction and refused to deliver the bill of lading. When the rope arrived in Baltimore, the appellee was notified, and the rope was unloaded, and after remaining on the dock for a few days, was stored by the dock authorities, without any order from either the appellant or appellee, "in a United States bonded warehouse," where it was subsequently, about February 13, 1914, destroyed by a fire. The agreed statement of facts. states, "Neither plaintiff nor defendant exercised any acts of ownership over the rope after its arrival in Baltimore." In April, 1915, the appellant brought suit in the superior court of Baltimore city to recover the contract price of the rope, etc. * * The defendant pleaded "never promised" and "never indebted" and a set-off. The case was tried before the court without a jury, upon issues joined on the first two pleas and on the replications of never promised, etc., to the defendant's plea of set-off. This appeal is from a judgment in favor of the defendant for the amount of the draft paid by it in the fall of 1912 produced in evidence. The real question in the case is, Who is to stand the loss caused by the destruction of the rope by fire? 15 * * * * * * It appears from the agreed statement of facts, and from the invoice. offered in evidence by the plaintiff, that the goods were to be delivered to the defendant in Baltimore, and that the freight was to be paid by the plaintiff. It would seem, therefore, clear that under rules 4 and 5 and section 41 16 the plaintiff by the terms of the appropriation of the goods to the contract reserved the property therein. Under rule 5 the property in the goods did not pass to the buyer upon delivery of the goods to the carrier, and as under the bill of lading the goods were deliverable to the order of the seller, he thereby reserved both the property and right of possession. The agreed statement of facts states that: "In order to secure the performance by the defendant of its obligations under the contract, the plaintiff had the bill of lading for said rope made out to the plaintiff's order and sent the same properly indorsed by the plaintiff with a draft for the purchase price of said rope attached, to Hamilton & Co., with instructions to turn over the bill of lading to the defendant upon payment of the draft." * * * But it nowhere states that that was the only purpose of the appellant in having the bill of lading made out in the way it was. Where, under the rules referred to, the form of the bill of lading is not the 15 At this point certain Code sections corresponding to Sales Act, §§ 17-20, were quoted. 16 Sales Act, § 20. only evidence of the intention of the seller to reserve the property in the goods, the form of the bill of lading cannot be interpreted as intended only for the purpose of securing performance of the contract. Hopkins v. Cowen, 90 Md. 152, 44 Atl. 1062, 47 L. R. A. 124. Section 43 of article 83 of the Code 17 provides: "Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer's risk, whether delivery has been made or not, except that: (a) Where delivery of the goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract, and the property in the goods has been retained by the seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer's risk from the time of such delivery. (b) Where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault." As we have said, the seller retained both the possession of and property in the goods, and there is no evidence to show that he reserved the property merely to secure performance of the contract by the buyer. But the appellant contends that the tender of the bill of lading to the appellee was equivalent to the tender of the rope itself, that the appellee by refusing to pay the draft for the purchase price of the rope unless he was allowed to deduct there from the amount of the draft he paid the appellant in 1912 broke the contract, and that the loss caused by the fire would not have occurred but for such default of the appellee. He insists that the contract of 1912 and the contract of 1913 are distinct, separate, and independent, and that the breach of the contract of 1912 by the appellant did not warrant a breach by the appellee of the contract sued on in this case. He cites many authorities in support of this contention, and the further contention that a debtor cannot apply a set-off in reduction of his debt and tender the residue, and that "unless otherwise agreed, the contract price must be paid in cash." 28 Am. & E. Enc. of Law, 18; 22 Am. & E. Enc. of Law, 576; Machen on Sales (vol. 2) § 1437; Leven v. Smith, 1 Denio (N. Y.) 571; 3 Elliott on Contracts, § 1926; 35 Cyc. 264. It is said in Williston on Sales, p. 465, that the situation for which subsection (b) of section 43 provides "is rather for a delay or temporary fault, which is not, and perhaps cannot be, treated as sufficient breach to terminate the bargain." That would seem to be the correct interpretation of the subsection referred to, for it refers simply to a delay of the delivery of the goods through the fault of either the buyer or seller, and not to such a refusal to accept delivery of or to pay for the goods as amounts to a breach of the contract. Here the 17 Sales Act, § 22. contention of the appellant is that the appellee by refusing to pay the draft broke the contract, and it can hardly be said under the circumstances that he simply delayed the delivery. * * * We are not required in this case to determine whether the appellee was justified in refusing to pay for the goods for the reason assigned by him. Assuming that the offer of the appellant to deliver the bill of lading in question was under the circumstances an offer to deliver the goods, and that the conduct of the appellee was in legal effect a refusal to accept the same and a breach of his contract with the appellant, the established ruie in this state is that where a vendee declines to take the property and pay for it the vendor has the choice of three remedies: (1) He may store or retain the property for the vendee, and sue for the contract price. (2) He may keep the goods as his own, and recover the excess of the contract price over and above the market price of the goods at the time and place of delivery. Or (3) he may sell them at the vendee's risk, and sue the vendee for the difference between the contract price and the price obtained at said sale. Regester v. Regester, 104 Md. 1, 64 Atl. 286; Swartz v. Realty Co., 106 Md. 290, 67 Atl. 283; Tyng & Co. v. Woodward, 121 Md. 422, 88 Atl. 243. In Tyng & Co. v. Woodward, supra, Chief Judge Boyd said: "The plaintiff could store the goods for the defendant and sue for the contract price, or he could keep the goods as its own and sue for the difference between the contract price and the market price, or he could resell them at the vendee's risk, and sue for the difference between the contract price and the resale price." The same rule is recognized in Williston on Sales, § 555; Dustan v. McAndrew, 44 N. Y. 72; Ames v. Moir et al., 130 Ill. 582, 22 N. E. 535; Putnam v. Glidden, 159 Mass. 47, 34 N. E. 81, 38 Am. St. Rep. 394; Moore v. Potter, 155 N. Y. 481, 50 N. E. 271, 63 Am. St. Rep. 692; Ackerman v. Rubens, 167 N. Y. 405, 60 N. E. 750, 53 L. R. A. 867, 82 Am. St. Rep. 728. These several remedies of the vendor are also provided for by the provisions of the Uniform Sales Act. In the case at bar the vendor of the goods in question did not resort to either of the remedies open to him, but while reserving the property in and the right to the possession of the goods, and refusing to deliver them to the vendee, except upon payment of the contract price, left them on the dock without making any effort to provide for their care or safety. The appellee could not take charge of the goods, and if the appellant had stored them for the appellee they might not have been destroyed by fire. The appellee should not therefore be required to suffer the loss of which his breach of the contract was not the proximate cause, and there was no error in the rejection of the plaintiff's second and third prayers. Judgment affirmed, with costs.18 18 See note, 2 Cornell Law Quarterly, 244. * CHAPTER IV OBLIGATIONS OF SELLER AND BUYER SECTION 1.-EXPRESS WARRANTIES WILLISTON ON SALES (2D ED.). § 195. Early Law of Warranty.-The law of warranty is older by a century than special assumpsit, and the action upon the case on a warranty was one of the bases upon which the law of assumpsit seems to have been built. The action on a warranty was regarded as an action of deceit, and the words "warrantizando vendidit" seem to have been necessary to make a good count as the words "super se assumpsit" later were in the action of assumpsit. The action was thus conceived of at the outset as an action of tort.1 This is, of course, also true of the action of assumpsit; but it was not long before assumpsit came to be regarded, as it is regarded to-day, as distinguished from tort and rather to be classed in its essential nature with covenant than with trespass on the case. But the right of action on a warranty was not regarded at once as similar in its nature to assumpsit. It was, indeed, not until 1778 that the first reported decision occurs of an action on a warranty brought in assumpsit, though from the language 1 Ames History of Assumpsit, 2 Harv. Law Rev. 1, 8: "Notwithstanding the undertaking, this action also was, in its origin, a pure action of tort. In what is, perhaps, the earliest reported case upon a warranty, Fitz. Ab. Monst. de Faits, pl. 160 (1383), the defendant objects that the action is in the nature of covenant, and that the plaintiff shows no specialty, but "non allocatur, for it is a writ of trespass." There was regularly no allusion to consideration in the count in case; if, by chance, alleged, it counted for nothing. Moor v. Russell, Skin. 104; s. c. 2 Show. 284. How remote the action was from an action of contract appears plainly from a remark of Choke, J.: "If one sells a thing to me, and another warrants it to be good and sufficient, upon that warranty made by parol, I shall not have an action of deceit; but if it was by deed, I shall have an action of covenant." Y. B. 11 Edw. IV, 6, pl. 11. That is to say, the parol contract of guaranty, so familiar in later times, was then unknown. The same judge, and Brian, C. J., agreed, although Littleton, J., inclined to the opposite view, that if a servant warranted goods which he sold for his master, that no action would lie on the warranty. The action sounding in tort, the plaintiff, in order to charge the defendant, must show in addition to his undertaking, some act by him, that is, a sale; but the owner was the seller, and not the friend or servant, in the cases supposed. A contract, again, is properly a promise to act or forbear in the future. But the action under discussion must be, as Choke, J., said, in the same case, upon a warranty of a thing present, and not of a thing to come." For early precedents, see Clift, Entries, 932, pl. 40; Lib. Placitandi, 40, pl. 54, 55; Y. B. 11 Edw. IV, pl. 10.-Williston. 2 Stuart v. Wilkins, 1 Dougl. 18 (1778).—Williston. |