Millhiser v. Erdmann

• Decision Date: 07 May 1889
• Citation: 9 S.E. 582,103 N.C. 27
• Parties: MILLHISER v. ERDMANN et al.
• Court: North Carolina Supreme Court

9 S.E. 582

103 N.C. 27

MILLHISER v. ERDMANN et al.

Supreme Court of North Carolina

May 7, 1889

Appeal from superior court, Craven county; GRAVES, Judge.

A dealer in tobacco, in reply to a written request for samples expressed the samples, and sent a letter in which the terms were stated to be "3, 4, and 5 months' notes." An order was given, which was filled, the shipment being made by express, and blank notes, drawn as above, forwarded by mail, with a request to "return signed in settlement at earliest convenience." The vendee proposed payment by time drafts, which the dealer declined, longer time, however being offered on the notes. Held, that the dealer was not bound by a clause at the head of a bill rendered to the vendee, to the effect that all sales not settled in 10 days should be subject to draft, especially as the vendee, in agreeing to sign the drafts, did not in any way signify his assent to the terms at the head of the bill, and that the contract of sale was not complete until the notes were delivered.

This was an action of claim and delivery, tried before GRAVES, J at the February term, 1888, of Craven superior court. The plaintiff testified that during the year 1885 and since he was doing business in Richmond, Va., as dealer in leaf tobacco for the manufacture of cigars, and that during said time the defendant Erdmann was doing business in New Berne, N. C.; that on or about the 28th of November 1885, the plaintiff received from said defendant a postal-card as follows:

"Newbern, Nov. 27th, '85. Dear Sir: Are you still in the leaf business? If so, send me samples of some binders; good stock; and samples of Havana and Havana wrappers, if you have some real nice stock on hand. You may also send me samples of Hustorick wrapper, if you have nice goods. Yours, &c., C. ERDMANN."

To which plaintiff replied as follows:

"December 1st, 1885. Dear Sir: In reply to yours of the 27th, I have sent you the following samples per express: Veg. 20 Havana @ $1.10; do. Genuine V. A. @ $1.25; 6 do. wrappers @ $1.25; 876 No. 488-89 wrappers @ 25c.; 242 No. 466-86 wrappers @ 35c.; 151 No. 483-83 wrappers @ 35c.; 11 No. 486-86 binders @ 12c.; 16 No. 487-87 do. @ 12c. Terms, 3, 4, and 5 months' notes. I have put these goods down very low, and hope to receive your order, as I feel sure the goods will give you entire satisfaction. Awaiting your prompt reply, I remain, Yours, &c., CHAS. MILLHISER."

Not hearing from Erdmann in the mean time, the plaintiff, on December 13, 1885, sent to him a letter as follows:

"Please let me hear from you in regard to samples 'leaf' sent you December 1st, from which I hope you have been able to make a selection. Trusting to hear from you, and soliciting your kind favors, which shall have prompt and best attention, Yours, &c., CHAS. MILLHISER."

That Erdmann received the samples in due course, and also the letters above set out; and on December 27, 1885, the plaintiff received a letter from Erdmann as follows:

"New Berne, Dec. 25th, 1885. Dear Sir: You can send me the following goods: Case 242 and 151; the two best bales Havana No. 16 and 6; and the binders I don't like. I must have better ones. If you have better, you may send me one case, and I would like to have a nice case of cheap cigars at about $10 per thousand, put up 50 in a box. Hoping business is good with you, I am, &c., C. ERDMANN. P. S. You send the tobacco. Be sure and give me weight for government book."

That on December 28, 1885, the plaintiff mailed to Erdmann the following letter, which contained the invoice and the three promissory notes therein mentioned, all of which were received:

"Dear Sir: Your favor 25th received, and I hand you inclosed invoice of two cases wrappers and two bales Havana, shipped by steamer as per your order. Am sorry the binders do not suit you. As I do not handle any Penn. cigars, I turn your order over to Messrs. H. Brownheld & Bro., who said they would send you samples. Inclosed I hand you three notes at three, four, and five months, which please make payable at your bank and return signed in settlement at earliest convenience, and oblige. Yours, truly, CHAS. MILLHISER."

On the same day the plaintiff shipped by steam-boat the tobacco as set forth in the letter, and it was admitted that the same was duly received by Erdmann, and that the value thereof was as stated in the complaint, to-wit, $400. The defendant Erdmann did not execute and send to plaintiff his notes; and on January 16, 1886, plaintiff received from said defendant a postal-card as follows:

"Dear Sir: I just received the goods. Send drafts to acceptance; as long time on them as possible. I will accept and return. That is the way I do with the rest of the dealers. Yours, truly, C. ERDMANN."

On the same day the plaintiff replied:

"Dear Sir: Your favor of the 15th is received, and in reply will say that when I sent you samples I wrote you on December 1st giving you price and terms,--notes at three, four, and five months. It is with this understanding you ordered the goods, and on these terms I shipped the goods. More than half your bills is Havana, on which the...