Bell v. Hoffman

• Decision Date: 28 February 1885
• Citation: 92 N.C. 273
• Court: North Carolina Supreme Court
• Parties: WM. H. BELL v. G. HOFFMAN, and others.

92 N.C. 273

WM. H. BELL

v.G. HOFFMAN, and others.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL ACTION, tried, on appeal from a justice of the peace, at Spring Term, 1884, of the Superior Court of HALIFAX county, before Avery, Judge, and a jury.

This action was commenced before a justice of the peace for the recovery of fifty dollars due by the note described in the contract below set out, which the plaintiff claimed as a forfeiture by the defendant G. H. Hoffman, for non-compliance with that contract, which was as follows:

“This article of agreement entered into this 17th day of August, 1882, between W. H. Bell of the first part, and Gerson Hoffman of the second, witnesseth:

That, whereas, W. H. Bell has this day sold to said Hoffman the entire stock of goods and fixtures he may have in store on Main street on the 1st day of September, 1882, the party of the second part agreeing to pay wholesale prices as per invoice from G. Oppenheimer & Son, making the following payments: One half cash, balance, of two equal notes, payable in sixty and ninety days from date of said notes, the party of the first part approving security.

Now then, in consideration of above sale and promises, the parties of first and second parts have this day given each to the other a note of fifty dollars as forfeiture of non-compliance. These notes shall be sealed and delivered in keeping with this contract.

In witness whereof, we have hereunto set our hands and seals.

W. H. BELL, (Seal).

G. HOFFMAN, (Seal).”

The justice rendered judgment in favor of the plaintiff; from this judgment the defendant appealed to the Superior Court. By consent, the defendant pleaded, as a counter-claim, the note executed to defendant G. Hoffman, which is described in this contract.

The plaintiff testified that he was able, willing and ready to perform the contract on his part, on the day named for performance. On cross-examination, he stated that the defendant G. Hoffman came to him about ten o'clock of the day fixed by the contract and told him he was ready to comply with the contract, and that be desired to take an inventory of the goods; that he (W. H. Bell) claimed ten per centum on the prime cost price of goods; that this was what he contracted for; that this was what wholesale price, as per invoice from G. Oppenheimer & Son, meant, and that he refused then to allow the inventory to be taken, unless the said defendant would allow ten per centum to be added to the prime cost price, and unless he did so he would not trade. Hoffman refused to allow this and left. The plaintiff further testified that about two o'clock of said day he told Hoffman that he could then take the inventory, as he would settle according to his construction of the contract. Hoffman declined to do this, and stated that he had made other arrangements.

Hoffman was introduced as a witness for himself and corroborated plaintiff.

The defendant then introduced G. Oppenheimer, who testified that he was the G. Oppenheimer referred to in the contract.

The defendant's counsel asked him at what price he sold to the plaintiff.

The plaintiff objected to the question as irrelevant, as its object was to vary and alter a written contract by parol evidence, and that the answer thereto could not and did not tend to explain a latent ambiguity in the written contract. The objection was overruled and the plaintiff excepted. The witness then said, at cost price.

The Court framed and submitted these issues:

1. Did the plaintiff refuse to comply with his contract on his part on the day agreed upon for performing the stipulation of the written contract?

2. Was the defendant ready, willing and able to comply with the contract on his part when the plaintiff refused on his part?

The plaintiff asked the Court to submit this issue: “Did the plaintiff offer to comply with said contract by adding ten per centum to the prime cost price of goods, and did he offer to comply with said contract as the defendant understood its terms before sunset of said day?” The Court refused to do so.

The Court charged the jury that if they believed that the plaintiff refused to comply with his contract on the day named, when the defendant offered to comply on his part, he could not recover, notwithstanding he did offer to comply before sunset of the day named.

The plaintiff excepted to this charge and asked the Court to charge that there was no evidence that the plaintiff had refused to comply with said contract on his part. The court refused this and plaintiff excepted.

The jury responded “yes” to both...