Chem. Co v. Johnson

• Decision Date: 12 November 1888
• Citation: 7 S.E. 770,101 N.C. 223
• Court: North Carolina Supreme Court
• Parties: Chemical Co. v. Johnson et al.

7 S.E. 770

(101 N.C. 223)

Chemical Co.

v.Johnson et al.

Supreme Court of North Carolina.

November 12, 1888

1. Evidence—Letters Showing-Completion of Contract.

In an action on a contract the complaint alleged that the agreement was as set forth in Exhibit B, the original contract, as modified by another writing marked " Exhibit C." Defendant denied the agreement as alleged. Held, that not only Exhibit C, but also all the letters which had passed between the parties in relation to the transaction, were competent to show that the agreement was executed, accepted, and acted upon as alleged.

2. Appeal—Review—Objections not Made Below.

Although the issue submitted to the jury by the court is very general in its bearing upon the pleadings, and scarcely a proper one, yet, where neither party objects to it, it must be taken as submitted by consent.

Appeal from superior court, Wake county; W. M. Shipp, Judge.

Action on contract by the Chemical Company of Canton against D. T. Johnson et al. Verdict and judgment for plaintiff, and defendants appeal. For opinion on a former appeal in this case, involving the construction of this contract, and its validity against creditors, see 3 S. E. Rep. 723.

C. M. Busbee, for appellants. Haywood & Haywood and Strong, Gray & Stamps, for respondent.

Merrimon, J. The following is a copy of so much of the case settled on appeal as need be reported:

"The plaintiff introduced in evidence, the defendants admitting the genuineness thereof, and that they were written and signed by the parties by whom they purport to be written and signed, paper writings, hereto annexed as a part of this case on appeal, and marked, respectively, Exhibits ' A, '' B, '' C, ' Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12, as explanatory of and constituting the contract between the plaintiff and D. T. Johnson, set out in plaintiff's complaint. This was all the evidence introduced by the plaintiff. That part of Exhibit B commencing with the words 'On May 1st next, ' and ending with the words whether the same have matured or not, ' have three crosses marked over the same in ink, which themselves are crossed out with pencil marks. The defendants objected to Exhibit A upon the ground that it was incomplete, vague, uncertain, and contained in itself no evidence of a contract between the parties; but made no objection of any sort to Exhibit B. The defendants also objected to Exhibit C, Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12, upon the ground that Exhibit B contained the following provisions, to-wit: ' Relative to this contract, no agreement or provisions outside of those embodied in the contract is recognized or confirmed, unless it is a matter of arrangement signed in writing, ' and therefore Exhibits C, Nos. 1 to 12, inclusive, were incompetent as tending to alter or modify Exhibit B, and on the ground that the said last-mentioned exhibits were without any consideration whatever, and could not tend to prove any further contract between the parties. The court overruled the objections of the defendants, and admitted the evidence. Exception by defendants. The defendant D. T. Johnson, claiming to have written the plaintiff a letter on or about January 30, 1885, in reply to one from plaintiff dated January 28, 1885, which plaintiff could not find, and denied ever having received it, was allowed to testify as to the contents of such letter; and, upon his so testifying, stated that the substance of the said letter was that he would not sign a contract binding him to deliver farmers' notes and mortgages as collateral to the plaintiff for the guano sold by him, and gave as his reason that he sold a good deal of guano on open account, and did not take notes and mortgages, and, not having notes, couldnot give them, but that he wonld send plaintiff what notes he did take, and where he sold on open account he would send plaintiff a list of accounts. The defendant Johnson was further allowed to testify that Exhibit A was signed by himself and one ' Vick, ' plaintiff's agent, on January 17, 1885, in duplicate, and that the copy kept by witness was erased and scratched out in the same manner as Exhibit B, which said erasure and scratching out in the copy of Exhibit A, so kept by witness, was agreed to between himself and said plaintiff's agent Vick. That Exhibit B was executed about January 30, 1885, and that he erased a portion of the same and sent it by mail, as it now appears, to plaintiff, on or about January 30, 1885, accompanied by the letter, the substance of which was as above stated. The incorporation and organization of the plaintiff was admitted, as was also that the defendant Johnson received 40 tons of guano from the plaintiff, under the contract between them, and that he sold the same; that he executed a deed of assignment to the defendant C. M. Busbee; and that the defendant Busbee now has in his hands, as such assignee, the sum of $965.54 in money, and some notes, proceeds derived from the sale of guano shipped defendant Johnson by plaintiff, and sold by said Johnson as aforesaid. After hearing the evidence, his honor charged the jury as follows, viz.: 'If the jury believe the testimony in this case, taking it altogether, the plaintiff is entitled to recover a verdict declaring Mr. Busbee to be a trustee for the benefit of plaintiff;' to which charge the defendants excepted. The following issue was submitted to the jury, viz.: ' Does the defendant C. M. Busbee hold the fund arising from the sale of the guano, mentioned in the complaint, in trust for the plaintiff? ' who, for their verdict, answered ' Yes.' Thereupon defendant moved for a new trial. Motion overruled. Judgment upon the verdict. Appeal by defendants to supreme court."

Exhibit A.

"Raleigh, ET. C, January 17, 1885. "We have this day sold to Mr. D. T. Johnson, of Raleigh, N. C, the following brands of fertilizers, on terms and conditions named below, viz.:-tons of Baker's Standard Guano, at$29.50per2, 0001bs. Delivered at Raleigh, N. C, in car-load lots, or as much additional as may be mutually satisfactory. We will deliver the above goods free on board at Raleigh, N. C, in bags, bbls. Settlement to be made by note, payable November 15 and December 15, '85, at Baltimore. On May 1st next, or sooner if possible, agrees to deliver to us or our order notes of all purchasers to whom sales of these goods may have been made; and for the gross amount of the sales of the same to be held by us as collateral security for payment of notes as stated above, and all of the above-mentioned goods, as well as the proceeds therefrom, are to be held in trust by-, for the payment of-notes to us. And all proceeds of said goods as collected must first be applied to the payment of-notes due us, whether the same have matured or not. He is to pay for all goods shipped on his orders to amount mentioned in contract, and we to be at no expense whatever after delivery of goods as agreed. The collaterals will be returned in time for collections. In sending the same to the company, place nominal value of $25 on each package. This contract subject to suspension by fire or unavoidable accident at seller's works, or storage warehouses. The above contract subject to approval of home office.

[Signed in duplicate.] "Chemical Co. of Canton.

"Per S. W. Vick, Agent.

"I accept the terms and conditions of above contract.

"D. T. Johnson."

Exhibit B.

"The collaterals will be returned in time for collection. In sending same to the company place nominal value of $25 on each package. This contractsubject to suspension by fire or unavoidable accidents at seller's works or storage warehouses. Relative to this contract, no agreement or provision outside of these embodied in the contract is recognized or confirmed, unless it is a matter of arrangement signed in writing. The above contract subject to approval of home office.

[Signed in duplicate.] "Chemical Co. of Canton.

"C. G. Heim.

"I accept the terms and conditions of above contract.

"D. T. Johnson."

Exhibit C.—No. 1.

"Raleigh, N. C, January 17, 1885.

"8. W. Vick, Agent Chemical Company of Canton, Balt. Md.—Dear SIR: I will deliver what notes that I receive for the ' Baker Standard Guano' to the company, if necessary; and also give them a list of the accounts, as I sell a great deal of guano on open account. Yours, truly.

"D. T. Johnson."

Exhibit C.—No. 2.

"Raleigh, N. C, January 19, 1885. "Chemical Company, Canton—Gentlemen: I assigned a contract with your Mr. Vick, which you doubtless have ere this, which, if satisfactory, you can assign and return. The only difference is in the sending of notes to you I have no objection at all, only some I sell on open account and take no notes. Am willing to send what I have. I do not expect to sell but a small quantity. Hoping to hear from you soon. I am respectfully yours.

"D. T. Johnson."

Exhibit C.—No. 3.

"Baltimore, January 21, 1885. "B. T. Johnson, Esq., Raleigh, N. C.—Dear Sir: We have your favor of 19th inst, and note contents. We have the contract made with our Mr. Vick, but it would be more satisfactory to us if you would sign and return us the contract we sent you for ten tons of 'Baker's Standard Guano.' In regard to the notes, you can send us what you take, and assign us a list of the open accounts, which will be satisfactory to us. Yours, truly,

"Chemical Co. of Canton. "K."

Exhibit C—No. 4.

"Raleigh, N. C, January 26, 1885. "Chemical Company of Canton: Yours in regard to contract to hand. We will try and carry out the spirit and letter of contract. Do not expect to make large sales, but will do what we can with parties who we consider entirely safe, The balance due by D. T. J. & Co. will be paid on or about the 15th of February We have granted an indulgence on some paper due until that time. The weather has been so bad, business has been at a stand still. It seems to be clearing up now Yours, D. T. Johnson."

Exhibit C.—No. 5.

"Baltimore, January 28, 1885. "Mr. D. T. Johnson, Raleigh, ...