Miles F. Bixler Co v. Britton

• Decision Date: 29 September 1926
• Docket Number: (No. 90.)
• Citation: 192 N.C. 199,134 S.E. 488
• Court: North Carolina Supreme Court
• Parties: MILES F. BIXLER CO. v. BRITTON.

134 S.E. 488

(192 N.C. 199)

MILES F. BIXLER CO.

v.BRITTON.

(No. 90.)

Supreme Court of North Carolina.

Sept 29, 1926.

Appeal from Superior Court, Hertford County; Cranmer, Judge.

Action by the Miles F. Bixler Company against Mrs. E. C. Britton. Judgment for plaintiff, and defendant appeals. No error.

Bridger & Eley, of Winton, for appellant.

Lloyd J. Lawrence, of Murfreesboro, for appellee.

BROGDEN, J. On the 12th of June, 1922, the defendant signed a written contract for certain jewelry named in the contract. This contract was accepted by the plaintiff on the 19th day of June, 1922. Among other provisions appearing in said written contract was the following:

"Salesman has no authority to change or add to these terms except in writing on this original order, which is subject to our acceptance. Not subject to countermand. Delivery to carrier is delivery to purchaser; purchaser to pay the charges. Jewelry shipped by express; showcase by freight."

The defendant admitted the execution of the contract, but contended that the contract had been canceled by the plaintiff. A. Oettinger, who made the contract with the defendant and took the order, was agent for the plaintiff.

The facts in regard to the cancellation of the contract are as follows: On July 13, 1922, the defendant wrote a letter to Oettinger about the matter. This letter does not appear in the record, but on July 15, 1922, Oettinger wrote the defendant as follows:

"Dear Madam: Your favor of the 13th inst. at band and noted, and by this mail I am requesting the Miles F. Bixler Company, Cleveland, Ohio, to cancel order, in accordance with your wishes. Regretting your decision not to handle the line,

"Very truly yours, A. Oettinger."

On July 15, 1922, A. Oettinger wrote a letter to the plaintiff in which letter, among other things, occurs the following:

"Under date of 13th inst. Mrs. E. C. Britton requests me to cancel the order placed with me for jewelry, and says she has special reasons for making this request, and would write to yon direct but is not able to locate your address. I am sending her your address by this mail, and it may he she will write you direct regarding the matter. Regret this decision on her part, but will only learn her reason on my next visit. Kindly cancel order, as she requests."

Thereafter, on July 19, 1922, the plaintiff wrote the following letter to the agent, Oettinger:

"Dear Mr. Oettinger: Tour letter of the 15th received with advice that you are returning samples. Upon their checking out in accordance with terms of agreement, we will promptly cancel and return bond to you, " etc. "We note what you say in regard of Mrs. E. C. Britton. We have not heard from her as yet, but when we do we will follow your suggestion."

There was reference in the letter to other matters which are not pertinent to this appeal.

The plaintiff objected to the introduction of these letters between the defendant and the agent and the plaintiff and the agent. The objection was sustained, and the defendant excepted.

The defendant asserts that the letter of July 19th from the plaintiff to the agent, Oettinger, in which the plaintiff states, "We note what you say in regard to Mrs. E. C. Britton; we have not heard from her as yet, but, when we do, will follow your suggestion, " amounts to a cancellation of the contract.

A written contract may be abandoned or relinquished: (1) By agreement between the parties; (2) by conduct clearly indicating such purpose; (3) by the substitution of a new contract inconsistent with the existing contract. Redding v. Vogt, 140 N. C. 562, 53 S. E. 337, 6 Ann. Cas. 312; Lipschutz v. Weatherly, 140 N. C. 365, 53 S. E. 132; Southern Public Utilities Co. v. Bessemer City, 173 N. C. 482, 92 S. E. 331; Faust v. Rohr, 167 N. C. 360, 83 S. E. 622.

The defendant testified:

"I have never had any written statement from the company that it would release me from the contract."

Therefore the only proof of a cancellation or rescission of the contract was contained in the letter from the agent Oettinger to the plaintiff and the reply thereto by the plaintiff under date of July 19th. All of these letters were incompetent. The said letter of July 19th from plaintiff to Oettinger purported to be signed by A. F. Gibson, vice president and manager of the plaintiff company. There is no evidence as to the authority of said Gibson to write the letter, particularly after the contract for the merchandise had been accepted by the plaintiff on June 19, 1922...