Morehead v. Brown

• Decision Date: 30 June 1859
• Court: North Carolina Supreme Court
• Parties: JOHN M. MOREHEAD v. JOHN L. BROWN et al.

6 Jones (NC) 367

51 N.C. 367

JOHN M. MOREHEAD

v.JOHN L. BROWN et al.

Supreme Court of North Carolina.

June Term, 1859.

Where there are two counts in a declaration, and evidence given on both, and a general charge by the Court on the facts applying to each count, a general verdict on both counts, is not erroneous.

In a question of diligence and ordinary care, in the storing and keeping of cotton, it is competent to prove the custom of the place where the contract was made, as to the manner of storing and keeping that article there.

Where a Judge, in the progress of a trial, erroneously decided against the reception of evidence as to a certain fact, but afterwards, in giving instructions to the jury, told them to consider the fact as proved, and to give the party, offering it, the full benefit of it, in making up their verdict, it was Held not to be a ground for disturbing the verdict.

Where a bailee, to store and keep cotton, for hire, permitted it to remain with the roping off, the bagging torn, the cotton loose and the under bales in the mud and water, so as to become stained, and much of it destroyed, it was Held to be a want of ordinary care, which made the defendants liable for damage to the commodity.

ACTION of ASSUMPSIT, as bailees, tried before CALDWELL, J., at the Spring Term, 1859, of Guilford Superior Court.

The plaintiff declared on two counts, one against the defendants as bailees, to keep a quantity of cotton in store, for hire, at a fixed price, and the other, upon a special contract to cover the cotton, so as to protect it from the weather.

There was no dispute as to the fact, that the defendants had agreed, for hire, to keep the plaintiff's cotton in an enclosed lot in the town of Charlotte. In March and April, 1854, the defendants received the greater portion of plaintiff's cotton, amounting to 350 bales, and placed it in an open lot, but it was not covered during the time it remained there.

The cotton was mostly from South Carolina, and was, much of it, in bad order when delivered to the defendants, for the want of roping, and the bags being torn and rotten. The summer, it was proved, was a very wet one, in consequence thereof, the cotton was much wetted. That next to the ground had been placed on poles, laid at intervals on brick bats, but as the ground became soft, from the continued moisture, the poles sank under the ground, and the lower bales were wetted and stained, much of it became rotten, and was unfit for any use whatever. It was in evidence, that the cotton was injured to the extent of 50 or 60 per cent. There was evidence also, that the defendants agreed to receive the plaintiff's cotton and to keep it covered.

The defendants proved that the plaintiff, for several months in the spring, had limited them to the price of 75 cents per hundred for hauling the cotton to Leaksville; that the price was lower than the wagoners were willing to take, and in consequence thereof, the cotton was delayed in the hands of the defendants, and that it was not until the plaintiff offered one dollar for the service, that it was sent on, which was in the summer and fall ensuing. The defendants offered evidence, going to show, that there was a custom in the town of Charlotte, at the time this commodity had been received there, to store it without covering; this evidence was objected to and ruled out, there being no evidence that plaintiff had knowledge of any such custom. Afterwards, the Judge, in charging the jury, told them, that on consideration, he had come to the conclusion, that the evidence offered by the defendants, as to the custom of storing cotton in the town of Charlotte, was proper for their consideration, and that they were to take it as if the fact had been proved, as alleged by the defendants, and act upon it accordingly. The defendants excepted to the exclusion of the testimony offered.

His Honor charged the jury, that it was for them to say, whether the special contract had been proved as alleged, and if so, to give the plaintiff damages for the injury they believed had ensued from the fact of the cotton being left so long uncovered. He also charged them, that the defendants were guilty of negligence in permitting the cotton to sink down into the water and mud, and to remain in that condition without removing it themselves, or informing the plaintiff of it. Defendants' counsel again excepted.

Verdict for the plaintiff. Judgment and appeal by the...