Furst v. Taylor, 442.

• Decision Date: 03 May 1933
• Docket Number: No. 442.,442.
• Citation: 169 S.E. 185,204 N.C. 603
• Court: North Carolina Supreme Court
• Parties: FURST et al. v. TAYLOR et al.

204 N.C. 603

169 S.E. 185

FURST et al.

v.TAYLOR et al.

No. 442.

Supreme Court of North Carolina.

May 3, 1933.

Appeal from Superior Court, Moore County; Oglesby, Judge.

Action by Frank G. Furst and another, copartners trading as Furst & Thomas, against J. F. Taylor and others. From a judgment granting partial relief, plaintiffs appeal.

New trial.

This is an action by Furst & Thomas, distributors of the McNess' sanitary line of products, which is composed of proprietary medicines, flavoring extracts, spices, coffee, some food products, stock remedies, dip disinfectants and brushes, a "fly killer" preparation, against J. F. Taylor, dealer; and D. S. Blue, George D. Carter, and Cleveland Oagle, guarantors; and is based upon a breach of a contract wherein the plaintiffs agree to sell the dealer on credit at wholesale prices, and the guarantors guarantee payment of goods thus purchased by the dealer.

Plaintiffs' prayer for judgment: "That the plaintiffs recover from the defendants, J. F. Taylor, Cleveland Cagle, George D¹. Carter and D. S. Blue, the sum of $891.59, with interest thereon from August 13th, 1929, until paid."

The answer and further answer of defendants are not as definite as they should be, but, under our liberal practice and the theory on which the action in the court below was tried, the plea of defendants seems to be payment and breach of warranty.

The issues submitted to the jury and their answers thereto were as follows:

"1. Is the defendant, J. F. Taylor, indebted to the plaintiffs, and if so, in what amount? 2. Are the defendants, D. S. Blue, George D. Carter and Cleveland Cagle, indebted to plaintiffs, and if so, in what amount. And the jury, for their verdict, answered the first issue $178.59, with interest; and the second issue $178.59 with interest."

Judgment was duly rendered for plaintiffs on the verdict. Numerous exceptions and assignments of error were made by plaintiffs, and appeal taken to the Supreme Court The necessary ones and facts will be set forth in the opinion.

C. H. Dearman, of Statesville, and Samuel R. Hoyle, of Carthage, for appellants.

H. F. Seawell, Jr., of Carthage, for appellees.

CLARKSON, Justice.

We think it only necessary to consider one exception and assignment of error.

The defendant, J. F. Taylor, on 2-9-1929 wrote plaintiffs: "Dear Sir: I have checked over my account with your statement showing that I owe you a balance of $884.66 on January 1, 1929. I approve this as being correct."

On August 29, 1929, he also wrote plaintiffs: "Just received your letter in regard to what I owe you. Will say I have not the money to pay it now, but if you will be so kind as to give me time, I think I can collect enough to pay up all right. I have got out on my books over $2,000.00. I will get out as soon as the tobacco market opens. The tobacco market will open September 24th. It is impossible to collect now as money is so scarce. I think I can pay you up by the first of the year with my collections. Hope you will be so good as to wait and not push my sureties for it. Write and let me know about It. Yours for a fair deal."

In J. F. Taylor's testimony, on cross-examination, he said: "Sure I promised to pay it. That was my intention."

The plaintiffs except and assign error "to the charge of the Court to the jury for that His Honor failed to charge the...