#### FRANK W. SANDRUCK *vs.*JOHN H. WILSON.

*Failure of*consideration: *breach of contract j recovery of money paid. Qourt and jury: instructionsj "no evidence”; Court's expression of opinion as to existence of factsj when no cause of reversal.*

A., through 33., the sales agent of certain manufacturers, ordered an auto truck on certain terms of payment; the order was directed to the manufacturers and was transmitted to them by B. with the $100.00 A. had deposited, but did not transmit any of the subsequent payments made. A. failed to comply with some of the terms of payment, but later paid to B. more than was then due, under B.’s agreement that he would “take care of A. for the overbalance.” B. failed to do this and directed the manufacturers to refuse delivery except upon full payment (according to the terms of the order). Held, that under proper instructions, A. was entitled to recover from B. the amounts so paid to him. p. 629

A trial judge has the right to instruct in favor of either plaintiff or defendant as to the legal insufficiency of evidence to support an issue to which it is directed. p. 630

A trial judge should be careful to avoid expressing in the presence of the jury an opinion as to the existence ®f any fact which should be left to their determination. p. 629

*625Where the Court by its written instructions correctly instructs the jury in effect that under the uncontradicted evidence in the case the plaintiff is entitled to recover it is not reversible error for the Court orally to indicate its opinion that the plaintiff should recover. p. 630

*Decided March 26th, 1912.*

Appeal from the Baltimore City Court (Elliott, J.).

The cause was argued before Bqyd, C. J., Beiscoe, Peabce, BueKe, Thomas, PattisoN, UbNeb and StocK-bbidge, JJ. »

*Myer Rosenbush*(with whom was *Benjamin*Rosenheim, on the brief), for the appellant.

*~W. Ashbie Hawkins*(with whom was *George*W. *V.*McMechen, on the brief), for the appellee.

UbNeb, J.,

delivered the opinion of the Court.

The appellee is a teamster and the appellant a dealer in automobiles. They are both engaged in business in the City of Baltimore. After some preliminary negotiations the appellee signed an order, prepared by the appellant, for the manufacture and delivery of an automobile truck. The order was given on January 7th, 1911, and was addressed to the Atterbury Motor Car Company, of Buffalo, New York, for which the appellant was a sales agent. It was stipulated that the car should be of a designated catalogue type, with certain modifications. The price was $2,500.00, and the terms of payment were “$500.00 with order; balance, sight draft with bill of lading attached.” This order was not transmitted to the Atterbury Company by the appellant, but the latter executed and sent to the company an order in his individual capacity identical in all respects with that signed by the appellee, except as to the name of the purchaser. The appellee did not deposit $500.00 with his order according to *626its terms, but on January 20th he gave the appellant his promissory note for that amount payable in fifteeen days, and this was paid a few days after its maturity. In the meantime it developed that the appellee would have difficulty in raising enough money to pay for the car, and the appellant, on January 27th, gave him a written promise to “take care” of him “to the extent of the overbalance on the Atterbury truck.” At that time the appellant held the appellee’s note for $500.00, and in the absence of explanation the undertaking just mentioned would be understood to convey an assurance covering the entire remainder of the purchase money. It was testified, however, by the appellee that the appellant’s promise to “take care” of him as to the “overbalance” was based upon an understanding that he was to pay $1,400.00 on account of the truck, and that the appellant was to take a “lien” for the remaining $1,100.00. Sometime after this memorandum was signed the appellee paid to the appellant the $500.00 note, and later on $860.00 additional, and stated his readiness to pay the further sum of $40.00 and to give a “lien” on the car for the balance of the purchase price; but the appellant demanded payment in full, and directed the retention of the truck at the factory because of the appellee’s inability to raise the requisite amount. The appellee then ■■asked for the return of the money he had paid on account, ■and brought this suit for its recovery upon the appellant’s ■refusal to make restitution. A judgment was rendered in favor of the plaintiff for the amount of his claim with interest, and the defendant has appealed.

There was a prayer to withdraw the case from the jury upon the theory that the plaintiff’s contract of purchase was made with the Atterbury Company, and that consequently there could be no recovery against the present defendant. This prayer was properly refused. The evidence in the record shows conclusively that the only order which the ■company accepted for the car was the one given by the defendant on his individual responsibility. It further appears that while the defendant sent the company $100.00 as a *627deposit at tbe time bis order was mailed, be bas remitted no part of the sums be subsequently received from tbe plaintiff on account of *Ms*purchase. In view of these facts, it could not properly be held that tbe plaintiff’s right of action is confined to a suit against tbe manufacturer, and that be bas no remedy against tbe party to whom bis money was paid and in whose possession it bas since remained.

There were other prayers offered by tbe defendant, and one was submitted by tbe plaintiff, but all were refused, and tbe Court gave an instruction of its own to the effect that if the jury should find that tbe plaintiff and defendant entered into a contract for tbe sale and delivery of an automobile by tbe defendant to the plaintiff, and should find that by the terms of the contract the plaintiff was to pay $500.00 at tbe time of its execution and that tbe balance of tbe purchase price, amounting to $2,000.00, was to be paid by tbe plaintiff upon a sight draft attached to a bill of lading to be issued upon tbe shipment of tbe automobile, and that it was never shipped to the plaintiff and no sight draft, was ever drawn upon him for tbe balance of tbe price, then as a matter of law, tbe defendant bas not complied with the terms of tbe contract and tbe plaintiff is entitled to recover. This instruction, of course, left tbe jury no alternative but to find a verdict for the plaintiff, as the evidence showed without contradiction that the defendant bad not complied with tbe terms of the original order. The defendant insists that this action was erroneous. It is contended that tbe proof establishes a waiver by tbe plaintiff of the shipment of tbe truck and tbe presentation of a sight draft as conditions precedent to tbe payment of the purchase price, and that tbe defendant should not be held to have lost tbe benefit of tbe contract merely because those conditions were not performed.

The facts to which we have already referred clearly show that the stipulations as to tbe terms of payment were materially changed by subsequent agreement. It appears that not only was the requirement for the payment of $500.00 *628with the order abandoned, and $860.00 of the balance paid without a draft and shipment, but that the parties distinctly agreed to a method of settlement which the contract did not in the first instance contemplate. The memorandum signed by the defendant and delivered to the plaintiff was undoubtedly intended by both to provide a new and different basis upon which the transaction was to be closed. Upon the faith of the defendant’s agreement to “take care” of him to the *extent*of the “overbalance” the plaintiff paid money which could not at the time have been demanded from him if the contract of purchase had remained unaltered. The defendant asserts that the memorandum he executed was not designed to subject him to any liability, and that its sole object was to enable the plaintiff to raise the money for the car among his friends; but this position is manifestly untenable. While the agreement is not explicit as to the manner in which the defendant was to “take care” of the plaintiff in reference to the “overbalance”, it was plainly the undertaking that the defendant should provide in *some*way for part of the purchase money. The proof is that the defendant did in fact arrange with the money-lender to invest $1,000.00 in a chattel mortgage on the truck, but the loan was not actually made for the reason that the investor, after waiting several weeks, during part of which time the car was not ready for delivery, made a different disposition of the fund he had intended to use for that purpose. No other effort was made or proposed by the defendant to aid the plaintiff in connection with the settlement. After paying-part of the price in reliance upon the defendants’ unqualified promise of assistance' as to the remainder, the plaintiff was left as completely to his own inadequate resources as if the assurance had never been given.

It is apparent, therefore, that the defendant is here setting up a waiver which was merely incidental to a supplementary agreement as to which he was himself in default. The trial Court in its instruction to the jury evidently proceeded upon the theory that as the non-performance by the *629defendant of Ms undertaking to provide for part of tbe purchase price had been conclusively proven, he was not entitled to roly upon the fact that the contract had been modified as a justification for his failure to observe the primary conditions of settlement. In this view we concur. Idle defendant having committed a breach of the new agreement, he certainly suffers no injustice in being required to stand upon the terms of the contract by which he insists that the plaintiff shall be bound. It is clear that upon the stipulations contained in the original order the defendant would not be in a position to collect the purchase price or retain the money paid on account, without a seasonable tender of delivery of the car in the mode designated. The undisputed facts here are that the aufomobile has been held at the factory by the .defendant’s order, that the plaintiff has paid $1,360.00 for which he has received no value, and that the transaction was not consummated because of the defendant’s failure to perform the supplementary agreement. Under such circumstances there was no prejudicial error in directing the jury to render a verdict for the plaintiff if they should find that the truck was not shipped and a draft for the balance of the purchase price was not presented as contemplated by the terms of the purchase.

In discussing the prayers and explaining its instruction the Court below indicated very plainly its opinion that the plaintiff ought to recover. Its remarks to that effect were made a special subject of exception. This Court has said that a trial judge should be careful to avoid expressing in the presence of the jury an opinion as to the existence of any fact which should be left to their determination. *United Railways Co.*v. *Carneal,*110 Md. 232. But the reason for the observance of this rule does not exist in the present case. There was no issue of fact submitted for the jury’s finding as to which there could be any dispute. It is noted in the record that the counsel for the defendant declined to argue the case to the jury because the Court’s instruction left nothing open for discussion. If, instead of expressing orallv *630its opinion that the plaintiff was entitled to a verdict, the Court had concluded its written instruction with the statement that there was no legally sufficient evidence of compliance by the defendant' with the terms of the order, the effect upon the verdict would have been altogether conclusive in the plaintiff’s interest; yet such an instruction would have been warranted by the uncontradicted evidence. There can be no doubt as to the right of a trial Court to instruct in favor of either the plaintiff or the defendant as to the legal insufficiency of evidence to support an issue to which it is directed. *Poe's Practice,*3rd ed., sec. 297; *Lewin*v. *Uzuber,*65 Md. 346. There being no ground upon which the defendant here could be held entitled under the evidence to retain the money he has received from the plaintiff, we can not regard as reversible error the remarks of the Court below pointing to that conclusion.

The record contains a number of exceptions in addition to those we have discussed. They relate principally to offers of evidence as to the defendant’s agency for the Atterbury Company, and to a claim of recoupment for commissions which the defendant would have earned if the sale had been consummated and for a loss which it was claimed would be incurred in. selling the truck on the market in consequence of the modifications in the standard type made in conformity with the order. The questions thus raised are immaterial to the issue before us in view of the uncontroverted facts we have emphasized that the manufacturer did not accept the plaintiff’s order or receive the money for which he sues, and that the defendant was in default as to both the original and supplemental (terms of settlement.

*Judgment affirmed ivith costs.*