B.F. Sturtevant Co. v. Selma Cotton Mills

• Decision Date: 08 March 1916
• Docket Number: 106.
• Parties: B. F. STURTEVANT CO. v. SELMA COTTON MILLS.
• Court: North Carolina Supreme Court

87 S.E. 992

171 N.C. 119

B. F. STURTEVANT CO. v. SELMA COTTON MILLS.

No. 106.

Supreme Court of North Carolina

March 8, 1916

Appeal from Superior Court, Johnston County; Bond, Judge.

Action by the B. F. Sturtevant Company against the Selma Cotton Mills. Upon the hearing the judge allowed all of plaintiff's exceptions to the report of the referee, and found the facts himself, and rendered judgment for plaintiff. Defendant excepted to the judgment, and appealed. Affirmed.

All presumptions are in favor of the findings by the trial court.

F. H Brooks, of Smithfield, and N.Y. Gulley, of Wake Forest, for appellant.

John W Hinsdale, of Raleigh, for appellee.

BROWN J.

This action is brought to recover damages for an alleged breach of contract for the purchase of certain machinery and appliances for use in defendant's factory to be manufactured by the defendant especially and according to specifications to fit the mill. The contract contained these provisions:

"Delivery subject to delays beyond our control;" also, "all to be delivered f. o. b. cars at our works, Readville, Mass. We to have four weeks' written notice of desired shipments."

The cause was referred, and upon hearing plaintiff's exceptions to the report and findings of the referee the court sustained them and rendered judgments as follows:

"After argument, it is considered and adjudged that the exceptions of the plaintiff are allowed, and the facts are found by the court accordingly, and the exceptions of the defendant are overruled; and the court finds, that the time limit in the contract sued on was inserted for the plaintiff's benefit, and that it did not require plaintiff to deliver within four weeks' notice; that the contract provided that the plaintiff should not be liable for delay beyond the plaintiff's control, and the delay in delivery was beyond plaintiff's control; that, even if all this were not so the defendant waived an earlier delivery and the plaintiff, under the circumstances, delivered in reasonable time, and the defendant had no right to cancel the contract; that the defendant is indebted to plaintiff in the sum of $535, with interest on $267.50 from January 7, 1905, and on $267.50 from March 7, 1905. It is adjudged that the report of the referee be, and is amended accordingly, and as so amended is in all respects confirmed. It is therefore upon the motion of John W. Hinsdale, plaintiff's attorney, adjudged that the plaintiff above named, do recover of the defendant above

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