Brown v. Bake

• Decision Date: 06 February 1888
• Citation: 5 S.E. 72,79 Ga. 347
• Court: North Carolina Supreme Court
• Parties: Brown v. Bake.

5 S.E. 72

(79 Ga. 347)

Brown

v.Bake.

Supreme Court of North Carolina.

February 6, 1888.

Contracts—Breach of—Right of Action.

In consideration of a promise by B. to A. to pay the latter 7 per cent, interest, and also a debt due him by others, B.'s promise thus amounting to an agreement to pay usury, A. agreed to lend B. money with which to purchase certain goods about to be sold at public outcry, for cash, by a receiver, if sold below a certain price. On the faith of this promise by A., B. bid off the goods at less than the price mentioned. A. refused to lend the money. B., consequently, could not comply with his bid, and the goods were immediately resold by the receiver to another for less than B. 's bid, and he holds B. responsible for the difference, and has sued B. for the same; the goods being actually worth more than B.'s bid. Held, that A.'s breach of the contract herein stated gives B. no right of action for damages against A.

(Syllabus by the Court.)

Error from superior court, Bibb county; Simmons, Judge. Hill & Harris, Dessau & Bartlett, and TV. C. Winslow, for plaintiff in error. Hardeman & Davis and Bacon & Rutherford, for defendant in error.

Lumpkin, J.¹ Brown brought against Baer an action for damages, his declaration making substantially the following case: One Nottingham, as receiver of Brown Bros., a mercantile firm, recently in business at Fort Valley, of which plaintiff was not a member, had advertised for sale the stock of goods of said firm. The goods were divided into three lots, designated, respectively, "the general stock, " "Jaffray's goods, " and "Hochstadter's goods, " all of which had been invoiced at cost prices, without freight, and were to be bid for and sold at so many cents on the dollar as invoiced. On the morning of the sale, and as a result of previous negotiations, the following agreement was made between Brown, the plaintiff, and Baer: "Baer agreed that petitioner should purchase all or as many of said goods as he wished to at said sale, provided his bids did not average over 75 cents on the dollar as invoiced, and that he (Baer) would immediately furnish the money with which said Brown should make payment therefor in cash, according to the terms of said sale." Brown was to use the goods when bought, as aforesaid, in carrying on a mercantile business, was to secure Baer by a mortgage on the goods, pay him for the use of the money 7 per cent., and also a debt of about $500 due Baer by Brown Bros.; and, further, he was to employ to aid him in the business a clerk designated by Baer, who was to remain till the greater part of Brown's debt to Baer was paid. The goods to be sold by the receiver were very valuable, and the arrangement with Baer afforded Brown an excellent opportunity to make a good investment, and start a profitable business. Relying on Baer's promise, he bid off the "general stock" at 71 cents on the dollar; his bid amounting to more than $5,000. The receiver demanded immediate payment, and, Baer refusing to furnish the money as he had agreed to do,.Brown could not make payment, and the goods were resold by the receiver in the afternoon of the same day, and bought by others at 50 cents on the dollar; it being then too late for Brown to make other arrangements to raise the money, as he might otherwise have done. The receiver holds Brown liable for the difference between his bid and the price at which the goods were actually sold, amounting to about $1,600, and has sued Brown for the same, The "Jaffray goods" sold at 80 cents on the dollar. "When the "Hochstadtergoods" were put up, Baer told Brown it would be better for him (Baer) to bid them off, but that Brown should take them at his bid. They were accordingly knocked off to Baer at 62 1/2 cents on the dollar; and he fraudulently, and in violation of his agreement, kept them, and refused to let Brown have them at all. All said goods were actually worth the full amounts at which they were invoiced as an investment, and, by reason of Baer's violation of his several promises and undertakings, Brown lost the opportunity of establishing himself in a profitable business, lost the bargain he would have secured in said goods, and was injured by the suit brought against him by the receiver as aforesaid, to the extent of about $1,600, —the amount of loss and liability thus thrown upon him. In a second count, plaintiff alleges that defendant made the said several promises fraudulently, intending thereby to mislead and deceive him, and prevent him from buying said goods, and that said Baer's purpose in so doing was to secure the same for himself. The defendant filed a plea of the general issue. The plaintiff then introduced certain testimony, the purpose of which was to show the contract between himself and defendant; and after this he was placed on the stand to testify in his own behalf, and a series of questions was propounded to him, by the answers to which he expected to prove the actual wholesale value of the goods in question at Fort Valley, the retail value at that place, the usual per cent, on the wholesale value of goods when sold at retail, the usual cost incurred in selling goods, the time it would probably...