American Steel & Wire Co. v. Copeland

• Decision Date: 09 October 1912
• Citation: 75 S.E. 1002,159 N.C. 556
• Parties: AMERICAN STEEL & WIRE CO. v. COPELAND et al.
• Court: North Carolina Supreme Court

75 S.E. 1002

159 N.C. 556

AMERICAN STEEL & WIRE CO. v. COPELAND et al.

Supreme Court of North Carolina

October 9, 1912

Appeal from Superior Court, Lenoir County; O. H. Allen, Judge.

Action by the American Steel & Wire Company against A. S. Copeland and others, with counterclaim by defendants. Judgment for defendants, and plaintiff appeals. No error.

Declaration of seller's agent made after transaction competent to contradict his dispositions denying sale.

This action was instituted to recover $610.94, as the purchase price of a car load of wire shipped by the plaintiff to the defendants. The defendants admitted the purchase of the car of wire at the price named, and set up a counterclaim for damages in the sum of $650 for breach of contract by the plaintiff, under which they allege that the plaintiff agreed to furnish the defendant wire, which contract was entered into between the plaintiff and defendants on or about the 21st day of June, 1910, and that the car load of wire, for the purchase price of which the plaintiff was suing represented only a portion of the wire which the plaintiff was to ship the defendants under the contract. The plaintiff denied the contract set out by the defendants.

The defendants offered evidence tending to prove: That they were general farm supply merchants in the city of Kinston. N.C. That on or about the 21st day of June, 1910, McKelcan, an agent and representative of the plaintiff company, approached the defendants for the purpose of selling them wire. That the defendants at this time were using another brand of wire, and had a large demand for wire fences from their customers. That B. W Canady & Son were handling the plaintiff's wire in Kinston, and on this account McKelcan stated to them that he could not ship them wire to Kinston, but would ship wire to Graingers, which is near Kinston, from which point the defendants could have it sent to Kinston. That the defendants stated to McKelcan that they would not care to purchase any wire from the plaintiff unless they could get all they wanted; that they would sell a car load a month, or at least five or six car loads a year, and probably more. That McKelcan thereupon agreed that the plaintiff would furnish the defendants all the wire that they wanted for their trade and, in addition thereto, would help advertise this wire all through the different counties, and guaranteed to the defendants to furnish them all the wire that they would require. That in pursuance thereof, the defendants and the plaintiff's agent sent the order for the one car, for the purchase price of which this action is brought. That upon the request of the said McKelcan, the defendants furnished the plaintiff with the mailing list of their customers containing about 500 names, to whom it appears the plaintiff wrote circular letters, which read in part as follows: "In order that you and others in your vicinity may see this fence and look into its good qualities, we have arranged that a liberal stock be carried by Copeland Brothers, Kinston, North Carolina, who will be glad to give you one of our complete catalogues." That the plaintiff also sent the defendants an electrotype containing a photograph of the wire fences, which the defendants used in advertising in the Kinston Free Press at the rate of $25 per month. That the one car load arrived and was sold by the defendants in about two or three weeks, and the second car ordered under the contract, and the plaintiff declined to ship the second car. That the defendants were out of wire about six weeks, during which time they could have sold a car at a profit of $300 per car. This was based upon the demands made by their customers for the wire. One hundred and twenty half rolls of wire is a minimum car load lot. That the defendants could have bought some lighter wire, made by different people than the plaintiff, from L. Harvey & Son, at 5 per cent. discount, but not the same kind or grade of wire which the plaintiff should have furnished the defendants and which they were advertising as being sold by the defendants; but they could not have purchased from their competitors B. W. Canady & Son wire at any such per cent. advance. The plaintiff, by the depositions of McKelcan and Dietrich, denied that there was any contract except the order for the one car of wire, and further attempted to deny that the agent had any authority to bind the plaintiff, although Dietrich stated that McKelcan's authority "was such as is generally given to a traveling salesman." Exception was taken by the plaintiff to the admission of the evidence tending to prove that the agent of the plaintiff agreed to furnish all the wire the defendants wanted, upon the ground that the order for the car, which was shipped, constituted the contract, and that parol evidence was inadmissible to add to or vary it. The defendants were permitted to prove that they had a conversation with the agent of the plaintiff, McKelcan, after the refusal to ship the second car, and that he admitted that he agreed to furnish all the wire the defendants wanted, and the plaintiff excepted. The plaintiff introduced the deposition of McKelcan, in which he denied the contract as contended for by the defendants.

His honor charged the jury on the question of damages, as follows: "You will confine the question of damages to the inquiry as to whether there was an agreement made with the defendants by the agent, approved by the plaintiff and ratified by them, by their conduct, correspondence, and if they refused to comply with the agreement, and by reason of that refusal the defendants were damaged, and, if so, in what amount they were damaged. That damages would have to be confined to such evidence as would enable you to ascertain reasonably the amount. That is to say, the defendants could not recover for what we call 'speculative damages.' He could not calculate that he might have sold large amounts of wire and make estimates upon that, but he would have to base his estimates as to what he could have sold upon the demands for wire made upon him by his customers, and such expenses as he went to preparatory to carrying out the agreement, like the advertising. The defendants cannot recover in their counterclaim more than they can show they have been damaged by advertising and by failure to be able to supply for the actual demands that were made upon them, and it was their duty to exercise care in restricting the amount of loss, if any, as much as possible, and, as I have already said, the defendants cannot recover speculative profits, nor remote profits for damage to his business, if any. I believe he is making no claim for that, nor can he recover for possible or probable profit on sales of goods, except such sales as he shows to the jury he could have made by reason of demands that were made upon them by their customers. And the burden is upon the defendants to prove by the greater weight of the evidence that they are damaged, and the amount of the damages." Plaintiff excepted.

The evidence as to damages was as to the loss of profits on one car of wire, and the jury awarded the amount claimed, $300, and from the judgment rendered the plaintiff appealed.

G. G. Moore, of Kinston, for appellant.

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