Grandy v. Small
| Decision Date | 31 December 1855 |
| Citation | 48 N.C. 8,3 Jones 8 |
| Court | North Carolina Supreme Court |
| Parties | JOHN J. GRANDY v. JOHN SMALL. |
Where it was agreed between A and B, that B was to deliver a quantity of corn at a given place and price “whenever called for,” It was held that an action would not lie for the non-delivery of the corn, if it appeared that no offer had been made to pay the price, and that when it was sent for, the agent to receive the corn had no money to pay for it.
And further, that B's denying A's right upon an untenable ground, did not exonerate him from showing such ability and readiness to perform his part of the contract ( Grandy v. McCleese, 2 Jones' Rep. 142, cited and approved.)
ASSUMPSIT, tried before his Honor Judge SAUNDERS, at the last Superior Court of Pasquotank.
The plaintiff declared for the non-delivery of a quantity of corn at Little River Bridge, and offered the following as the contract declared on, which is in writing, and is as follows:
“This is to certify, that I have this day sold John J. Grandy five hundred bbls. corn at three 25-100 dollars per bbl., to be delivered at Little River Bridge in clean and sound order, when called for.
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¦Jan. 18, 1854. ¦JNO. SMALL.”¦
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Which was proved.
On the 31st of the same month, (January) the plaintiff gave notice to defendant, in writing, that he was ready to receive and pay for the corn, and demanded that it should be delivered according to the contract. This writing was sent by a Mr. Newbold, who left it at defendant's dwelling, he not being at home; but he saw the defendant that day, who admitted he had received the paper, but said he did not intend delivering the corn, because the plaintiff had not sent for it according to the contract. This witness said further, that he was not furnished with any funds to pay for the corn. There was no evidence that what the defendant said to this witness was communicated to the plaintiff. On the next day, (Feb. 1,) plaintiff sent his vessel to Little River Bridge for the corn, with one Palee as his agent, to demand and receive the same; but the defendant again refused to deliver it, alleging the same reason as before. Neither had this agent any funds to pay for the corn, or for any part of it.
The plaintiff proved that on the last day of January, 1854, he had to his credit in the Farmers' Bank of Elizabeth City, more than $2000, which he was entitled to draw, and that corn was then worth at Elizabeth City $4 per barrel, also that plaintiff could raise this amount of money at any time.
The defendant read in evidence another writing, which was signed by plaintiff and delivered to defendant at the same time with that of the one declared on, which is as follows:
“This is to certify, that I have this day purchased of John Small, five hundred barrels of corn at three dollars and twenty-five cts. per barrel--cash on delivery. To be delivered at Little River Bridge clean and sound. Jan. 18, 1854.
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¦Signed,¦JNO. J. GRANDY.” ¦
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Defendant's counsel insisted that plaintiff could not recover, 1st. Because he had not given reasonable, nor indeed, any previous notice, to the defendant, of the time when he would be prepared to receive the corn. 2nd. Because he had not paid, nor offered to pay.
The Court charged the jury, that if they believed the evidence the plaintiff...
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...138 N.C. 105, 50 S.E. 586; Williston on Contracts (Rev.Ed.), §§ 730-733; 77 C.J.S., Sales, § 262. See, also, in this connection: Grandy v. Small, 48 N.C. 8; Grandy v. McCleese, 47 N.C. 142. 2. The seller may waive his contractual right to the immediate cash payment of the purchase price in ......
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