JW Sanders Cotton Mill v. Capps
| Decision Date | 02 May 1952 |
| Docket Number | Civ. A. No. 429. |
| Citation | 104 F. Supp. 617 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | J. W. SANDERS COTTON MILL, Inc. v. CAPPS. |
L. Arnold Pyle, Jackson, Miss., William E. Timberlake, Lumberton, N. C., for plaintiff.
Isaac C. Wright, Wilmington, N. C., Carl V. Venters, Jacksonville, N. C., for defendant.
This action was brought to recover the alleged purchase price of certain tobacco bed cloth sold and delivered to defendant on February 16, 1951, together with interest from February 26, 1951, the date payment was due. The defendant defended on the ground that the cloth delivered to him was not constructed and packed according to the terms of the order. The defendant admits that he is indebted to plaintiff in the amount of $4,505.66, representing sales by him of a portion of the cloth less transportation charges incident to a return of the remainder. The case was heard without a jury in the Wilmington Division. The findings of fact are set forth herein.
On January 6, 1951, defendant telephoned James T. Duckworth, Charlotte, N. C., an independent selling agent, who had a working agreement with plaintiff's selling agent, to take orders for plaintiff's products and submit them to plaintiff for acceptance or rejection. In this conversation defendant placed an order for 300,000 yards of tobacco bed cloth, 150,000 yards 36" 28 × 24, 15.00 weight @ .09 1/3 , and 150,000 yards 36" 24 × 20, 17.00 weight @ .08¼. Defendant and Duckworth dicussed the kind, character, construction, and quantity of cloth desired by defendant; also delivery dates, price, terms of payment, method of packing and place of delivery.
The defendant and Duckworth differ on two points in respect to what was said in the conversation: defendant states that it was agreed by Duckworth that the cloth was to be made up with ¼" tape selvage and packed in bolts of 80 to 100 yards and in bales of 3,000 yards; while Duckworth states that he made it plain that the cloth would be put up in rolls of 3,000 yards and made up with standard selvage.
On the day of this telephone conversation Duckworth reduced the order to writing, mailing the original to plaintiff's selling agent and a duplicate original to defendant; but this order erroneously quoted the price of the 24 × 20, 17.00 weight cloth at 8½¢ per yard instead of 8¼¢, as agreed in the telephone conversation. When this error was called to Duckworth's attention on January 9, 1951, he made up a corrected order on that day, mailing original to the selling agent and copy to defendant. This corrected order, which was the same as first order except for the price change noted, was as follows:
The order was accepted by plaintiff's selling agent and two copies of such acceptance, called a Sales Note, were mailed to defendant by first class U. S. Mail, postage prepaid, on January 12, 1951. The provisions of the Sales Note were identical with the corrected order except that the Sales Note called for "long cuts" while the order did not contain those words. This variation is of no significance.
On February 3, 1951, the order, at defendant's request, was reduced from 50 to 40 bales (or rolls) of each type of cloth; and on February 16, 1951, plaintiff delivered to defendant's agent at plaintiff's mill, Starkville, Mississippi, 79 rolls of tobacco cloth which was constructed with standard selvage rather than with ¼" tape selvage, and made up in rolls of 3,000 yards rather than being packed in bolts of 80 to 120 yards in bales of 3,000 yards.
The cloth delivered to defendant's agent consisted of 39 rolls of the 28 × 24 cloth, containing 119,903¾ yards, and 40 rolls of the 24 × 20, containing 120,017¼ yards, of the combined value under the order of $21,092.41.
This cloth so delivered to defendant's agent was manufactured and packed in accordance with the provisions of the confirmation order dated January 6, 1951, and in accordance with the corrected order of January 9, 1951, a copy of each of which was mailed immediately to defendant; and further, it was in accordance with the provisions of the sales note of January 12, 1951, by which the order was accepted by plaintiff, a copy of which also was immediately mailed to the defendant, postage prepaid.
While the cloth was not manufactured and packed in accordance with defendant's contention of the order which he gave Duckworth, in that it was made up with standard selvage rather than ¼" tape selvage and was wound on rolls of 3,000 yards rather than packed in bolts of 80 to 100 yards in bales of 3,000 yards, it was reasonably suited for the purpose intended, the covering of tobacco plant beds for protection, even if not, as defendant contended, as satisfactory as that constructed and packed as defendant claims it should have been.
Prior to February 21, 1951, defendant sold and delivered to customers 18 rolls of the cloth, 18,608¾ yards of the 28 × 24 construction and 36,519½ yards of the 24 × 20, having a total value of $4,749.18, according to the prices quoted by Duckworth to the defendant and according to the prices set out in both the typed confirmation of order and the sales note of plaintiff accepting the order.
On February 21, 1951, the defendant claimed for the first time that the cloth was not what he had bought, and he testified that in the course of the telephone conversation wherein he made his complaint Duckworth agreed that he, Duckworth, would take the remaining 61 rolls off the defendant's hands. Defendant testified further that Duckworth told him to dispose of what he could and that he, Duckworth, would thereafter give shipping instructions for the rest of the goods. Duckworth denied making such...
To continue reading
Request your trial
-
Western Electric Company v. William Sales Company
...of the shipment and reject the remainder. Hajoca Corporation v. Brooks, 249 N.C. 10, 105 S.E.2d 123 (1958); J. W. Sanders Cotton Mill v. Capps, D.C., 104 F.Supp. 617 (E.D.N.C.1952); Hendrix v. B & L Motors, Inc., 241 N.C. 644, 86 S.E.2d 448 From the facts found, the plaintiff, Western Elect......