Kerr v. Sanders
| Decision Date | 26 April 1898 |
| Citation | 29 S.E. 943,122 N.C. 635 |
| Parties | KERR v. SANDERS et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Mecklenburg county; Greene, Judge.
Action by W. H. Kerr against L. W. Sanders and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Failure to furnish a bond is not ground for canceling a contract of employment, not requiring it, though one had been demanded during the correspondence leading up to the contract.
Jones & Tillett, for appellant.
Burwell Walker & Cansler, for appellees.
Defendants employed the plaintiff to buy cotton for them for a term of six months, at the price of $75 per month, each month's wages to be due at the end of the month. This contract was substantially made by letter correspondence between the parties commencing in July; but on the 5th day of September 1896, they closed the contract, commenced by the letter correspondence, by a formal written contract signed by both parties. In this signed contract the defendants reserved the right to dismiss the plaintiff without notice and without further liability to him. The grounds stated in said contract, for which the defendants may discharge the plaintiff without notice or further liability, are "that if he fails to discharge the duties required of him to the satisfaction of said Sanders, Orr & Co., either from inability or neglect on his part." On the 25th of August defendants wrote to plaintiff, saying that they required of him a bond of $3,000. The plaintiff undertook to give this bond, but failed to do so, and then wrote defendants that this bond was not included in the contract, and he thought his references ought to be sufficient. It does not appear that anything was said in the signed contract about plaintiff's giving a bond. But defendants' counsel contends that the plaintiff had been notified, before the formal contract was signed, that defendants would expect him to give a bond, and therefore it constitutes one of the conditions of the contract, as much as if it had been incorporated into the contract; and cites Kitchin v Grandy, 101 N.C. 86, 7 S.E. 663, as authority for this contention. But we do not think so. In that case the correspondence was used in construing a contract. To use it for the purpose claimed by defendants would be to incorporate a new condition into the contract. This cannot be done. The correspondence was the chaffering between the parties, and would probably have amounted to a contract, if nothing further had taken place between them. But all this was merged into the formal written contract of the 5th of September which was signed by both parties. We cannot hold that the conditions contained in the contract authorized the defendants to discharge the plaintiff without liability upon the ground that the plaintiff failed to give them the bond they required of him.
But the defendants had the right to discharge the plaintiff from their service without any stipulation to that effect in the contract, but, in doing so, they took the responsibility being held in damages therefor. This they did, after some correspondence, on the 25th of September, in a very cut manner, in the following note: But accompanying this note of discharge was a check drawn by defendants on the Commercial National Bank of Charlotte, payable to plaintiff or his order, for $75, in which was written, "In full for services." Upon this check the plaintiff's indorsement was, ...
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