Merrill v. Tew

• Decision Date: 15 March 1922
• Docket Number: 177.
• Parties: MERRILL v. TEW.
• Court: North Carolina Supreme Court

110 S.E. 850

183 N.C. 172

MERRILL v. TEW.

No. 177.

Supreme Court of North Carolina

March 15, 1922

Appeal from Superior Court, Carteret County; Lyon, Judge.

Action by K. A. Merrill against J. J. Tew to recover damages for an alleged breach of contract. Judgment for the plaintiff, and defendant appeals. No error.

The plaintiff alleges that he sold to the defendant, and that the defendant purchased from him, a carload of potatoes about the 1st of June, 1919; that the car contained 210 barrels at $7.10 a barrel; that the potatoes were primes or No. 1's that he raised 80 barrels himself and bought from Dickinson 110 barrels, and from Springle 20 barrels, paying them $7 per barrel, to enable him to carry out his contract with the defendant, He alleges that he carried out his contract with the defendant; that these potatoes were inspected by the local inspector and placed upon the car as directed by the defendant.

The defendant, as plaintiff alleges, refused to accept the potatoes according to the contract, and after an attempt by the plaintiff to sell the potatoes on the local market, which he failed to do, he consigned the shipment, through Mr Gibbs, to Phillips & Sons, commission merchants in New York and received for them the sum of $693.58. This action is brought to recover the difference between the contract price for the potatoes and the actual amount the plaintiff received for the 210 barrels when he sold them on the market.

The jury returned a verdict in favor of plaintiff and in response to the issues submitted to them as follows:

"(1) Did the plaintiff and defendant contract as alleged in the complaint? Answer: Yes.

(2) Did defendant break said contract? Answer: Yes.

(3) What damage, if any, is plaintiff entitled to recover? Answer: $776.42; we mean the difference between what the potatoes sold for and $7 per barrel."

Judgment was entered accordingly, and defendant appealed.

Where there was some evidence that the contract for the sale of a carload of potatoes provided for inspection before delivery, and the court charged the jury to answer the first issue "No" if such inspection was required, an affirmative answer to the first issue was a finding against such a provision in the contract.

H. L. Stevens, of Warsaw, and M. Leslie Davis, of Beaufort, for appellant.

C. R. Wheatly, of Beaufort, for appellee.

WALKER J.

The foregoing statement sets forth the main features of the controversy.

There was evidence that the defendant did not refuse to take the potatoes until just after he had received and read a telegram from New York indicating that the market had declined or was "going off." The plaintiff testified that the defendant had told him to load the potatoes on the car and he would come to the railroad station and pay for them, but refused them after he had read the telegram. The defendant, on the contrary, testified that he had examined the lot of potatoes as well as he could under the circumstances, and found them "off grade" and not such as were sold to him. The carload consisted of some potatoes which plaintiff had grown himself and two or more lots he had purchased from others at $7 per barrel to complete the shipment of 210 barrels, and plaintiff further testified that they were "No. 1 primes," that is, of the kind and quality he agreed to sell to the defendant; that he had complied with the contract in all respects; and that the defendant rejected the potatoes without any just or lawful excuse, but simply because he had learned by the telegram that the price was falling in the potato market at New York.

Upon this and other relevant evidence the court instructed the jury very broadly for the defendant. The court told the jury that--

"If they found from the evidence that the 210 barrels of potatoes were delivered according to the contract made between plaintiff and defendant (if you find they made such a contract), and you further find that the defendant refused to pay for the potatoes, it will be your duty to answer the first issue 'Yes.' But, if the potatoes were not according to contract, why, then, the defendant was not bound to receive them. If there was not 90 per cent. of them No. 1 potatoes, as contracted for, there would be no breach of contract by defendant, but if you find that the potatoes and all of them, the 210 barrels, were 90 per cent. No. 1 prime potatoes, as they were required to be, and that the defendant refused them for no other reason than that the market had declined, then you would answer the second issue 'Yes.' "

This charge placed the real issue between the parties squarely upon its merits, as it was only a question as to which party had testified truthfully about the matter, and the charge responded fully to the defendant's requests for...