Cox v. Long

• Decision Date: 30 June 1873
• Court: North Carolina Supreme Court
• Parties: JONATHAN E. COX, et al., Trustees, v. B. L. LONG.

69 N.C. 7

JONATHAN E. COX, et al., Trustees,

v.B. L. LONG.

Supreme Court of North Carolina.

June Term, 1873.

If a person agree to purchase articles to be delivered by a certain time, and which are promised to be of a certain good quality, and after payment for the same, and after it is too late to return them without prejudice to himself, he finds out that they are of inferior quality, he may sustain an action to recover damages on account of the inferior quality of the articles, although he has taken and used them.

This was a CIVIL ACTION, brought to the Superior Court of the county of GUILFORD, in which the defendant demurred to the complaint of the plaintiff. His Honor, Tourgee, J., at the last Spring Term of the Court sustained the demurer, and ordered that the plaintiffs amend their complaint upon the terms of paying all the costs, or that the suit be dismissed. From this order the plaintiffs prayed and obtained an appeal to the Supreme Court. The case is sufficiently stated in the opinion of the Court.

Mendenhall & Staples , (with whom was W. H. Bailey,) referred to the following cases: Caldwell v. Smith, 4 Dev. & Bat. 64; McIntyre v. McIntyre, 12 Ired. 302; Barnes v. Barnes, 65 N. C. Rep. 262; Waldo v. Halsey, 3 Jones 110; Sapona Iron Co. v. Holt, 64 N. C. Rep. 335; Mendel v. Steel, 8 M. & W. 858; Harrington v. Stratton, 22 Pick. Rep. 510; Jones v. Bright, 15 Eng. C. L. Rep. 529; Riggs v. Burridge, 15 M. & W. 598; Gardiner v. Long, 4 Camp. 144; Laing v. Fidgeon,Ibid. 169. The counsel also cited the following authorities: Brown's Com. 354; 1 Arch. N. P., 306; 3 Black. Com. 164, note 24; 1 Par. on Con. 465, note N; 2 Smith's L. Cas. 32; Broom's Legal Maxims 747 and 768; Benjamin on Sales, 680, 682.

J. T. Morehead, Jr., for the defendant cited Stark on Ev. 1,646 and 1,647, and the following cases Caldwell v. Smith, 4 Dev. & Bat. 64; McIntyre v. McIntyre, 12 Ired. 299; Dickson Jordan, 11 Ired. 166. and Matthews v. Smith, 67 N. C. Rep. 374.

SETTLE, J.

The defendant contracted to deliver to the plaintiffs on the railroad at Newbern, sixty thousand cypress shingles, four inches wide and twenty inches long. The shingles were paid for, shipped and hauled from the railroad in Guilford county to the plaintiffs' building, before the plaintiffs were aware of the fact that they only measured three inches in width and seventeen inches in length.

The plaintiffs allege, and the defendant admits by his demurrer, that the shingles were received too late for the plaintiffs to secure others in their stead without immense damage to a new building then being erected by them, and great delay in its completion, and that they were compelled to use these shingles or a part of them for the protection and completion of their building.

The defendant says that by receiving the shingles and using them the plaintiffs waived any want of conformity to the contract, and right of action they might have had for breach of the contract. The principle governing this case is so well stated in the notes to Cutter v. Powell, 2 Smith, leading cases, pages 32 to 35, that we will content ourselves by making a few extracts therefrom:

“It is settled by Street v. Blay, and Poulton v. Lattimore, that where an article is warranted, and the warranty is not complied with, the vendee has three courses, any one of which he may pursue: 1. He may refuse to receive the article at all; 2. He may receive it and bring a cross action for a breach of the warranty; or, 3. He may, without bringing a cross action, use the breach of warranty in reduction of the damages in action brought by the vendor for the price. * * * But although Street...