MILLER et al. v. MANTIK. (Court of Appeals of Maryland. June 23, 1911.) 1. SALES (§ 340*)-ACTION FOR PRICE or ValUE-SPECIAL CONTRACTS-ACTIONS.

Where there is a special contract of sale of goods a recovery, if any, must be thereon instead of on a quantum meruit, and where there has been a breach of the contract the party guilty of the breach cannot abandon the contract and elect to stand on the common counts. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 927-942; Dec. Dig. § 340.*]

2. CONTRACTS (§ 303*)-BREACH-ACTS CON

STITUTING.

A party guilty of a breach of contract may be excused therefor where his act constituting the breach is occasioned by some act of the other party to the contract.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1424-1433; Dec. Dig. § 303.*] 3. CONTRACTS (§ 316*)-BREACH-WAIVER.

A breach of contract by one party thereto may be waived by the other party affected thereby.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1382-1387, 1480-1492; Dec. Dig. § 316.*]

4. SALES (8 182*) - BREACH OF CONTRACT WAIVER QUESTION FOR JURY. A seller agreed to sell canned tomatoes, and the buyer agreed to furnish the cans for a specified allowance, but failed to deliver the cans. The seller made some deliveries thereafter, but did not make all the deliveries called for. Held, that the issue of the seller's waiver of the buyer's default was for the jury in determining the right of the seller to abandon further performance, the question of waiver being for the jury where it has to be deduced from the actions of the parties, while it is usually for the court when arising as a question of estoppel. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 494; Dec. Dig. § 182.*]

5. TRIAL ( 243*)-INSTRUCTIONS-CONFLICTING INSTRUCTIONS.

In an action for the price of canned tomatoes delivered by the seller under a contract requiring the buyer to furnish cans, the evidence showed that the buyer failed to furnish cans when demanded, and the issue was whether the seller, by making some deliveries thereafter, waived the buyer's default, so that he could not abandon further performance. Held, that a charge that if the seller continued to deliver after the buyer's refusal to supply cans the buyer could recover damages for the seller's breach to make complete delivery, and a modification by an addition that there could be no recovery if the jury found that the seller demanded the necessary cans, and the buyer refused to furnish them, were not inconsistent with each other, but the modified charge merely presented to the jury the question of the seller's waiver of the buyer's default.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 243.*]

6. TRIAL (§ 253*)-INSTRUCTIONS - IGNORING EVIDENCE.

An instruction which ignores a large part of the evidence of a party is erroneous, especially where the instruction is the only one given. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*] 7. TRIAL (§ 267*)-INSTRUCTIONS-REQUESTSMODIFICATION.

Where the issue whether a seller of canned tomatoes waived the buyer's refusal to furnish the necessary cans was for the jury, a modification of a requested prayer dealing with the

797

question as one of law so as to submit the question to the jury was proper.

STOCKBRIDGE, J. On the 6th of August, 1910, the parties to this case entered into a written contract by which the appellee, the plaintiff below, agreed to sell to the appellants 2,000 cases No. 2 full standard tomatoes and 1,500 cases No. 3 full standard tomatoes. The buyer was to furnish the cases and cans for the fruit, and be entitled to a specified allowance for so doing. Deliveries were to be made when packed during the season of 1910, not later than October 1st. The vendor commenced deliveries upon the same day the contract was signed, and, according to the plaintiff's evidence, continued making them up to the 30th day of September, by which time the full amount of the No. 2 variety had been delivered and 735 of the 1,500 cases of No. 3. The present suit is brought, not on the written contract, but in assumpsit to recover upon the basis of a quantum meruit for a balance due for goods actually delivered, but not paid for by the buyer. There should be but little difficulty in determining the principles controlling the case.

[1] The general rule is unquestionably that where there is a special contract, the recovery, if any, must be had by an action upon that, rather than by a suit based on a quantum meruit, and where there has been a breach in the contract, the party guilty of the breach cannot abandon his contract and elect to stand upon the common counts. Dougherty v. Gring, 89 Md. 544, 43 Atl. 912; Townes v. Cheney, 114 Md. 362, 79 Atl. 590, decided January term, 1911.

[2, 3] But the party guilty of the breach may be excused from that default where his act or failure, constituting the breach, is occasioned by some act of the other party (Meyer v. Frenkil, 113 Md. 45, 77 Atl. 369), or the breach of the contract may be waived by the party to be affected by it.

[4] The defense to the present suit is the nondelivery of 765 cans of No. 3 tomatoes, as constituting a breach of the agreement. The nondelivery is admitted by the plaintiff, who insists, nevertheless, that this was due to the refusal of the defendants to furnish cans in accordance with the agreement, and the failure of the defendants to make the payments

*

the contrary was clearly shown, and not contradicted. ** The general manager testified that 'the purpose is to supply, not only the territory north of New Cumberland, but also to supply a circulating system in New Cumberland, and to increase its pressure.' Richwine, secretary and treasurer of the defendant company, testified that 'the object of the company was to give a larger supply of water for fire protection;' that what was proposed to be installed 'was a gridiron system, a cross system, connecting each pipe line, so as to give a certain flow, and so there will be no dead ends, so the water will flow through all the pipes of the system-a cross connection of each pipe line with the other.' The defendant is erecting a station and filter plant * * * and other improvements to its system, involving necessarily a very large outlay of money, and testimony was offered to show that one of the incentives to do this was that there had been complaint by citizens of New Cumberland as to the water supply; * * * that by the laying of the proposed new and larger pipe, and making connections with those formerly laid, it will give the circulation required to prevent water from becoming stagnant in the "dead ends,' which has heretofore obtained in the existing system of distribution; also that by means of this new pipe line and the proposed connections the company will be enabled to give New Cumberland and the other communities which it serves a much more abundant supply, and that of pure filtered water, and a pressure much more serviceable for fire purposes, as already stated. It was also shown * that the establishment of the pumping station and purification works, the laying of a new force main from there to a new reservoir north of White Hill, and the laying of additional street mains in White Hill, Lemoyne, and New Cumberland were submitted to Samuel G. Dixon, commissioner of health of the commonwealth, and were approved by him, and permits given to the company defendant *** to make the proposed additions and changes to its system, under the powers conferred upon him by the provisions of an act of assembly, approved April 22, 1905 (P. L. 260).

some force, that these permits of the commissioner of health should be regarded under the powers conferred upon him by the act of assembly of April 22, 1905 (P. L. 260), in the nature of orders or decrees, which were obligatory upon the company, and which it could not disregard; but, even if they be not regarded as legally enforceable, yet it cannot in any aspect of the case be treated otherwise than as most influential in determining whether the plans which the defendant seeks to carry into execution are wise and justifiable, or not. It was also urged that the ordinance of January 20, 1896, given to Horner and assigned to the Mountain Water Company, authorizes the entry upon the streets and alleys of the borough.

"After hearing and giving due consideration to what has appeared before us, we have been unable to discover that there is any valid or reasonable objection to the carrying out of its plans by defendant. Indeed, on the other hand, what is proposed seems to promise beneficial results. The borough of New Cumberland will have a larger and an abundant water supply to draw from. To that from the springs and runs in York county will be added pure filtered water from an inexhaustible source, circulation will be insured in the pipes, and stagnation, with consequent deterioration, avoided, while the additional pressure provided will render it more serviceable in case of fire, and insure better protection. As a matter of course, the ditches dug in which to lay pipes will be filled up, and the streets put in equally as good condition for public travel as they were before being entered upon by the defendant. We are therefore of the opinion that the plaintiff is not entitled to the relief sought by it in this bill."

The bill was dismissed, after a hearing on the merits, and the plaintiff appealed.

Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ.

J. W. Wetzel, for appellant. S. B. Sadler, for appellee.

MOSCHZISKER, J. While there are numerous specifications of error, the appellant's principal contentions are that the court below failed to give full and proper effect to the ordinance of councils referred to in its opinion; that it admitted incompetent testimony; that it failed to understand and misapplied the actions of the health authorities in relation to the matters before it for adjudication; and that the answers to the plaintiff's requests for findings were "evasive, indefinite, and not responsive to the issue raised in this case." Though much might be said in criticism of the manner in which certain parts of the adjudication are stated, after a thorough consideration of the

[1] Whether or not the orders and permits of the state health authorities to the defendant company were sufficient warrant in law to justify the construction through the plaintiff borough of the water line here objected to, and whether or not the municipal ordinance pern is such construction, it is not necessary to decide; for "water companies are not required to obtain permission of a borough to lay pipes in its streets, for the manifest reason that their charters give them the right to enter upon the streets and lay their mains without such permission" (Dorrance v. Bristol Borough, 224 Pa. 464, 472, 73 Atl. 1015, 1018); and there is no limitation in the ordinance which would affect the defendant's right to construct the line in question.

[2] Should it be conceded that all general rights of the water company inconsistent with the municipal grant would be limited by the terms of the ordinance, that would not prevent the defendant from exercising charter rights which are not inconsistent, simply because no direct reference to the particular rights desired to be exercised are to be found in the ordinance; in other words, the maxim, "Expressio unius est exclusio alterius," is not to be applied in the construction of this ordinance, so as to deprive the water company of its charter rights.

[3] It is provided in the ordinance that Horner and his assignees shall have the right "to enter upon the streets and highways of the said borough for the purpose of supplying good water to said borough and the inhabitants thereof. * * Said water to be mountain water taken from the springs or runs in Fairview township, York County, Penna., so long as the consumption of the borough shall not exceed the supply of such springs or runs as may be selected by said Horner, in which event the additional water shall be pumped from the Yellow Breeches creek." The appellant contends that this limits the right of the defendant company to pipes conveying water from the springs and runs referred to, so long as they continue to furnish a sufficient supply. It appears, however, that the water which is to run through the new line is to come from the Yellow Breeches creek, a source of supply named in the ordinance. Even though there may be a sufficient quantity of mountain water from the springs and runs to supply the present needs of the borough, it does not follow that the water company, fixed with the obligation to keep up such supply, could not provide for the future by making the water from the Yellow Breeches creek presently available in the borough. Hence the limitation contended for fails.

[4] The findings of the court below are that the new main is not to be used exclu81 A.-51

also furnish water for the borough of New Cumberland," and "is to be used for furnishing a circulating system of water with the old pipes, as well as to furnish increased fire pressure" needed within the borough. Under these circumstances, the fact that it may also be used by the defendant company for the purpose of transporting water beyond the borough limits would not be sufficient to justify us in reversing the court below for refusing the relief asked for by the plaintiff.

We are satisfied by our examination of the record and by what is stated by the learned president judge of the court below, to the effect that he was not influenced in reaching his conclusions by any testimony in the nature of hearsay, that no harmful error was committed in the rulings on the evidence.

[5] Some of the answers to requests may be justly criticised as "evasive." Litigants, and this court, are entitled to have direct, definite answers placed upon the record to all requests for findings, and when the replies are evasive they merely serve to confuse, and not to assist a proper determination of the issues. The answers complained of have caused us additional labor in examining the evidence, but we are satisfied that no material harm has been done to the plaintiff.

[6] Equity rule 67 provides that upon appeals to the Supreme Court such matters only as have been excepted to and finally passed upon by the court below shall be assigned for error. The preceding rules provide for the taking of exceptions in the trial court, and rule 65 that, "if no exceptions be filed, all objections shall be deemed to be waived." The assignments in this case do not show that exceptions were taken, or, if taken, how disposed of. For instance, the first specification is: "The learned court below erred in its answer to the first finding of fact for the plaintiff," quoting the request and answer. This specification should have shown that there was an exception taken, and the assignment of error should have been to the final action of the court on the exception. In Landis v. Evans, 113 Pa. 332, 335, 6 Atl. 908, we said: "The assignments of error are an essential part of the pleadings in this court, and as such should be so complete in themselves as not to require reference to other parts of the record." Here we must look in other parts of the record for the exceptions and the rulings thereon.

We will not specifically pass upon the 25 specifications of error; such of them as it would serve any useful purpose to discuss have already been touched upon. They are all dismissed, and the final decree of the court below is affirmed, at the cost of the appellant.