Dula v. Cowles

• Decision Date: 31 December 1859
• Citation: 52 N.C. 290,7 Jones 290,75 Am.Dec. 463
• Court: North Carolina Supreme Court
• Parties: ANDERSON DULA v. J. & C. J. COWLES.

7 Jones (NC) 290

52 N.C. 290

75 Am.Dec. 463

ANDERSON DULA

v.J. & C. J. COWLES.

Supreme Court of North Carolina.

December Term, 1859.

Where a party had agreed to deliver a certain quantity of pork, and having delivered a part, refused to deliver the balance, it was Held that he could not recover for the part delivered.

What amounts to an abandonment of a contract, so as to enable the opposite party to sue on the common counts in assumpsit for the value of a part performance, is a matter of law to be determined by the Court, and it is error to leave it to the jury.

THIS was an action of ASSUMPSIT, tried before BAILEY, J., at Spring Term, 1859, of Wilkes Superior Court.

In November, 1852, the plaintiff sold, and agreed to deliver to the defendants, fifteen hundred pounds of pork on the first of January, 1853, at six cents per pound, and the defendants agreed to pay for the pork in two notes and a judgment, and also, an account, which they had against the plaintiff.-- The defendants held two notes against the plaintiff, one for $25.86, and one for $16.57, and a store account for goods sold and delivered, amounting to $17.54; also, a judgment in the hands of one Brayhill, for collection.

The plaintiff did not deliver any pork according to his contract, on the first of January, 1853. He delivered two hundred and seventy-one pounds about the middle of that month, and this, at six cents per pound, amounted to $16.26, which amount the defendants endorsed on the note for $25.86, leaving a balance upon that note of $9.40. The plaintiff afterwards, to wit, on the 24th of January, 1853, delivered seven hundred and sixty-two pounds of pork, and also, on that day, sold and delivered to defendants, some corn, tallow, and a raw hide, the pork amounting to $45.72, and the corn, tallow and raw hide, to $6.48. A memorandum of the pork, corn, tallow and raw hide, was made by one of the defendants, at his dwelling-house, and delivered to the plaintiff, with directions to deliver the same to Mr. Martin, a clerk in the store, and have the same entered to his credit upon the books. Mr. Martin entered the price of the pork, &c., to the credit of the plaintiff upon the books, and paid $0.75 to Thomas Dula, and charged the same to the plaintiff.

The plaintiff returned to the store the next day, on the 25th, and asked Martin to look over the books, and see how the accounts stood. Martin and plaintiff looked over the books together, the defendants being present. After ascertaining what was due upon the notes, and the amount of the book account, the notes were delivered up to Dula, and the balance for the pork, corn, &c., was ascertained to be $18.49. This balance, plaintiff demanded in cash. The defendants refused because the plaintiff had not delivered all the pork, and had not delivered up an order which defendants had given him on Brayhill, for the judgment against him. The plaintiff then said he would deliver the balance of the pork the next day, and he would then see if the defendants would not pay him.

The Court charged the jury, that if the contract for the pork had not been altered, the plaintiff could not recover: that he had agreed to deliver fifteen hundred pounds of pork on the 1st of Janury, and as he had delivered one thousand and thirty-three pounds only, he had no right to recover any thing until he had delivered the whole; that it was competent, however, for the parties to change this contract if they thought proper, and the only question in the case was, had they altered or modified their contract?

The Court further charged that there was evidence of a change or modification of the contract; that the endorsement on the note of $16.26, the amount of the first lot of pork, and the delivery up of the notes to plaintiff, was evidence of a change or modification of the contract; that it was for the jury to say whether there had been a change or not; if they were satisfied that the parties agreed to settle their account as they then stood, that the plaintiff was entitled to recover.

Under these instructions, the jury found a verdict for plaintiff. Judgment. Appeal by defendant.

Boyden, for plaintiff .

Fowle, for defendant .

PEARSON, C. J.

The statement of the case now sent does not set out how the remainder of the price of the pork was to be paid. This, we presume, was through inadvertence, as the variance was not referred to on the argument, and in the case when before us, 2 Jones' Rep. 454, it is stated as a fact undisputed, that the balance of the price, if any, was to be paid “one half in goods, the other cash,” and when before us, 4 Jones' Rep. 519, the fact that the remainder of the price was to be paid “one half in goods, the other half in cash,”...