Danville Lumber & Mfg. Co. v. Gallivan Bldg. Co.

• Decision Date: 03 January 1919
• Docket Number: 361.
• Citation: 97 S.E. 718,177 N.C. 103
• Parties: DANVILLE LUMBER & MFG. CO. v. GALLIVAN BLDG. CO.
• Court: North Carolina Supreme Court

97 S.E. 718

177 N.C. 103

DANVILLE LUMBER & MFG. CO. v. GALLIVAN BLDG. CO.

No. 361.

Supreme Court of North Carolina

January 3, 1919

Appeal from Superior Court, Rockingham County; Shaw, Judge.

Action by the Danville Lumber & Manufacturing Company against the Gallivan Building Company. Judgment for plaintiff, and defendant appeals. No error.

On an issue whether building contractor agreed to accept material furnished by plaintiff, although not in accordance with contract, instructions, stating contentions of both parties held to present both with equal fullness.

Pharr & Bell, of Charlotte, for appellant.

M. K Harris, of Danville, Va., and J. M. Sharp and J. R. Joyce both of Reidsville, for appellee.

PER CURIAM.

The court is of the opinion that this case has been tried without any error in the superior court. The charge must be taken as a whole, and, thus construed, we do not find that there has been anything omitted or inserted to the defendant's prejudice, nor do we think it is subject to criticism as being one-sided. The jury must have found that the ten samples of sash were not sent to defendant to be fitted to the openings, but to be examined and inspected to see if they were made according to the plans and specifications, and, as they were retained without objection, the plaintiff had the right to infer that they were satisfactory, and would be accepted as a compliance with the contract, both as to material and workmanship, except as to those defects specified in the conversation at the mill, and in the suggestions of Mr. Coughlin about the grooves and the beveling of the bottom of the sash, so as to fit them in instead of making them square, and perhaps one other suggestion made in a letter that Coughlin wrote the next day. The court instructed the jury as to these matters, we think very fully and impartially. They were questions of fact for the jury to decide, and, after careful examination of all the evidence, the prayers for instructions and the charge, we are unable to find any substantial ground upon which to assign error prejudicial to the defendant.

There was strong evidence, which would have warranted the jury in finding for the defendant upon all the issues, and it may be that they should have done so; but, in this respect, we have not the power to help the defendant, as the power to set aside a verdict, which is erroneous, in the jury's estimate of the weight which should have been given to the evidence, belongs to the judge who presided at the trial.

If the entire charge is considered, we think the jury were instructed, and must have understood, how they should answer the issues as they might find the facts to be, whether in favor of the one side or the other.

The jury answered the first two issues and the fourth in favor of defendant, and the third issue was the important one in settling the question in controversy. As to this issue, the judge instructed the jury as follows:

"The third issue is: 'If not, did the Gallivan Building Company agree to accept said material as furnished by the plaintiff?' The burden is on the plaintiff to show this by the greater weight of the testimony. You will answer the issue, 'Yes;' otherwise, you will answer it, 'No.' "

It is true that immediately afterwards he did state the plaintiff's contention at some length, but he then gave the defendant's contention, his opening sentence being:

"Now, the defendant contends you ought to answer that (third) issue, 'No.' "

He then stated at length the defendant's view concerning it, and we cannot see that the statements of the two contentions to the jury were not equally full, fair, and impartial. The instruction as to the quality of the glass was not one-sided, when reference is made to the context of the charge upon the third issue. The judge had stated the plaintiff's contention, and at the end of the statement gave the instruction, to which the exception was taken. He then stated the defendant's contention as to the sash and the quality of the glass, and especially did he say that the defendant insisted that the issue should be answered in its favor; that is, "No." The jury must have understood from all this statement of the two contentions that, if they found the facts to be as the plaintiff contended, they would answer the third issue, "Yes," and if as the defendant contended, they would answer it, "No." In an elaborate charge, slight inadvertence, not changing the sense, nor calculated to mislead the jury, are not so substantial and prejudicial as to call for a reversal.

We have held that if contentions are not properly stated, the attention of the court should then be called to the omission, so that it may be supplied. The latest cases are Muse v. Motor Co., 175 N.C. 466, 95 S.E. 900, and State v. Davis, 175 N.C. 724, 95 S.E. 48. See, also, Jeffress v. Railroad Co., 158 N.C. 215, 73 S.E. 1013; State v. Johnson, 172 N.C. 920, 90 S.E. 426; State v. Blackwell, 162 N.C. 672, 78 S.E. 316; McMillan v. Railroad Co., 172 N.C. 853, 90 S.E. 683. "Even if there is technical error, courts will not reverse when it is slight and it clearly appears that it is not substantial and could not have affected the result." State v. Davis, supra; Goins v. Indian Training School, 169 N.C. 736, 86 S.E. 629; Elliott v. Smith, 173 N.C. 265, 91 S.E. 954.

As to the requirement of knowledge, on the part of the defendant, of any defects in the sashes or glazing, to constitute a waiver of them, it cannot be denied that such is the law, because a man cannot be said to waive that of which he has no knowledge, and waiver is largely a matter of intent. But the jury could infer, as they seem to have done, that the sash were sent to defendant for inspection and not for fitting, and that defendant had acquired, by examination, the requisite knowledge of any defects. The charge sufficiently covered this question. But the third issue did not, in terms, present the question of waiver, but that of acceptance, for its form is: "Did the Gallivan Building Company agree to accept said material as furnished by plaintiff?" The judge properly placed the burden of this issue on the plaintiff, but, if there had been any concealment of defects by it, the burden of showing this would have been on the defendant. There was evidence of an acceptance, and the jury have found as a fact that there was one.

But upon the question of waiver it may be said that it takes place where one person dispenses with the performance of something which he has a right to exact of another, and it is said to be a technical principle introduced and applied by the courts for the purpose of defeating forfeitures. While it belongs to the family of estoppel and the doctrine of estoppel has a fundamental relation to it, being the foundation upon which it, to some extent, rests, they are nevertheless distinguishable terms, though it may be difficult to draw the distinction between them which will give to each a clear...