Ashe v. DeRosset
| Decision Date | 31 December 1860 |
| Court | North Carolina Supreme Court |
| Parties | WILLIAM S. ASHE v. ARMAND J. DEROSSET, Adm'r. |
Where, in a suit for the loss, by fire, of a quantity of rice, deposited at a mill to be beaten, it was proved that the general custom of the mill was to give a receipt to the owner of the rice delivered, expressing the quantity and the terms of deposit, it was held, in the absence of proof that the custom was departed from in this particular instance, that there was a presumption that such a receipt was delivered to the plaintiff.
Where a receipt was given, on the delivery of a quantity of rice at a mill, setting forth the quantity and terms of deposit, it was held, in an action for the loss of the rice by fire, that the plaintiff could not resort to proof of the quantity aliunde, without proof of his inability to produce the receipt.
Where the owner of a rice mill, who had a turn at his own mill, agreed to let a customer have it, and there is no particular inducement shown, or other explanation given, it was held that the agreement was a nudum pactum.
Where the owner of rice, which had been burned at a mill, went to a partner, who was not cognizant of the state of the business, and demanded a given quantity of rice, to which he replied, that “it was nothing more than he expected,” it was held, that this was no admission as to the quantity.
Where a verdict was rendered for more than the amount claimed in the writ. in a case where the measure of damages was certain, and there was no certain creterion by which to show a mistake or misapprehension, it was held not proper to allow an amendment of the writ.
ACTION of ASSUMPSIT, tried before FRENCH, J., at the last Fall Term of New Hanover Superior Court.
The plaintiff declared in two counts.
1st. For the loss of 2300 bushels of rice, which was destroyed by fire by the negligence of the defendant.
2ndly. On a special contract, that the plaintiff should have the turn of the defendant, at the defendant's rice mill, by a breach of which, the rice of the plaintiff was destroyed by fire.
It was proved that Potter and Wade were partners.
James Pettiway testified, that Wade was the active partner and superintended the mill. The mill was burned in February, 1844. In October, 1844, at the request of plaintiff, he demanded of Potter 2300 bushels of rice, to which the latter replied, “it was nothing more than he expected.”
Thomas D. Meares testified, that the custom, at the mill, was, that each planter had a turn at the mill, of 1500 bushels, and to secure this, a deposit of 200 or 250 bushels was necessary; that on the morning after the fire, he had a conversation with Wade, and he said that he (witness) had in the mill, at the time of the fire, 1300 or 1400 bushels, and that plaintiff had lost much more than that, and that Potter had lost about 15,000 bushels.
Plaintiff's counsel asked witness, what Wade said as to the cause of the fire. The defendant's counsel objected to the question, but the objection was over-ruled, and defendant excepted.
The witness proceeded; that Wade said the fire originated from the journals, and that these were of wood, and were on the upper floor; that Wade said further, he was in the habit of going over the mill every night to see that all was right before closing, but on the evening before, he had neglected to do so, as he was much fatigued; that the journals, as he said, had caught on fire before. He further stated, that Wade was mistaken as to the quantity he (the witness) had in the mill, for that it was only 800 or 900 bushels; that clean rice was worth, at that time, $2,25 a $2,75 per 100 lbs., and rough rice about one-fourth as much; that the general custom was to give receipts, and that the rice was at the risk and control of the owner; that this was expressed in the receipt.
The counsel of the defendant read, in evidence, a notice served on the plaintiff, to produce the receipt he had received from the mill for the rice deposited.
The defendant was a rice planter, and was entitled to his turn in the mill. The toll charged for beating was 10 per cent. This mill was run by steam power. The principal risk in mills of this kind is from fire. The wooden journals are liable to take fire if neglected. Mr. Quince testified, that he had been familiar with rice mills for 30 years; that they are much subject to fire, and great care has to be used to prevent fire; that according to the custom, in this business, the rice is at the risk of the owner, and subject to his control; that it was usual to make a small deposit at the mill to secure a ““turn” and just before it came round to deposit the remainder, say 1500 bushels; this course was pursued on account of the danger of fire; that the owner of a mill, if a planter, had a turn.
Stanton Spooner testified, that he was employed in the mill at the time the fire occurred; that there was no negligence; that on the evening before the fire, on closing the work of the day, Wade went through the mill and carefully examined the mill, and saw that every thing was right; that Potter did give Ashe one turn, and that Ashe only had about 500 bushels of rice in the mill when the fire occurred; that it was the uniform custom to give receipts to persons bringing rice to the mill, expressing the quantity and the terms on which the rice was received.
The counsel for the defendant, contended that the contract to give the plaintiff his turn at the mill, was but a nudum pactum, also that the non-production of the receipt, given by the mill-owner, to the plaintiff, created a presumption against his claim. The Court declined giving the instruction asked, upon the ground, in the latter instance, that there was no evidence that such receipt had come to the hands of the plaintiff. Defendant's counsel excepted.
The Court charged the jury, that if they were satisfied that there was a contract that the defendant was to give his turn, and that this agreement was made in contemplation of the imminent risk of fire, and the defendant did not give his turn and his rice was destroyed by fire, then, the plaintiff was entitled to recover the value of the rice destroyed. If they found that the contract was made, not in contemplation of the imminent risk of fire, and there was a breach of it, and the plaintiff's rice was destroyed by fire, the plaintiff was entitled to nominal damages.
If they were satisfied, from the evidence, that beating rice was attended with great risk from fire, and that the fire originated in the journals, and that the defendant did not see that all was right before closing on the night before the fire, then, the defendant was guilty of gross negligence, and the plaintiff was entitled to recover the value of the rice destroyed by the fire. Defendant's counsel excepted to the charge. Verdict for $2930,20. The writ, in the case, claimed damages to the amount of $1500, but his Honor permitted the writ to be amended without costs, so as to correspond with the verdict, and the Court gave judgment accordingly.
Defendant appealed.
Person, Strange and W. A. Wright, for the plaintiff .
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