Myers v. Cooper

• Decision Date: 17 February 1909
• Citation: 63 S.E. 681,150 N.C. 128
• Court: North Carolina Supreme Court
• Parties: WALKER & MYERS . v. COOPER.

63 S.E. 681

150 N.C. 128

WALKER & MYERS .

v.COOPER.

Supreme Court of North Carolina.

Feb. 17, 1909.

1. Chattel Mortgages (§ 112^*)—Lien.

Where defendant, having agreed to cut and deliver for plaintiffs at their mill over 1, 000, 000 feet of timber, in quantities of not less than 40, 000 feet per week, sold and conveyed to plaintiffs the mules and wagons in controversy to secure performance of such contract, and plaintiffs by way of advancement, at defendant's re quest, took up a mortgage on the mules, plaintiffs acquired a valid lien on the property to secure defendant's performance of the contract.

[Ed. Note.—For other cases, see Chattel Mortgages, Dec. Dig. § 112.*]

2. Evidence (§ 441*) — Parol Evidence — Written Contract—Variance.

Where defendant contracted in writing to cut and deliver for plaintiffs over 1, 000, 000 feet of timber, in quantities of not less than 40,-000 feet per week, parol evidence of a contemporaneous agreement that if defendant could not supply the 40, 000 feet per week, plaintiffs would take what defendant could deliver, was properly excluded.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2030; Dec. Dig. § 441.*]

3. Logs and Logging (§ 8*) — Contract — Modification.

Where a lumbering contract required defendant to deliver 40.000 feet per week, plaintiffs, by accepting delivery of 5, 000 feet or less for certain weeks, did not waive their right to demand delivery of the stipulated quantity, nor a relinquishment of plaintiffs' right to recover damages for a failure to deliver the stipulated quantity, or their ultimate breach of the contract involving a severance of the contract relation.

[Ed. Note.—For other cases, see Logs and Logging, Dec. Dig. § 8.*]

Appeal from Superior Court, Bertie County; Cooke, Judge.

Action by Walker & Myers against D. W. Cooper, to recover two mules and two logging wagons. Judgment for plaintiffs, and defendant appeals. Affirmed.

On issues submitted the jury rendered the following verdict: "(1) Are the plaintiffs, Walker & Myers, the owners and entitled to the possession of the two mules described in the complaint and taken in claim and delivery? Answer: Yes. (2) Was defendant in wrongful possession thereof when this action was brought? Answer: Yes. (3) What is the value of said mule? Answer: $100. (4) Were the plaintiffs, Walker & Myers, the owners, and entitled to the possession of the two log wagons described in the complaint? Answer: Yes. (5) Was the defendant in the wrongful possession of said wagons when this action was brought? Answer: Yes. (0) What is the value of said wagons? Answer: $66. (7) Did the plaintiffs, Walker & Myers, break their contract with defendant, Cooper, as alleged in his answer? Answer: No. (8) If so, what damage has defendant sustained? Answer: —. (9) What is the balance due plaintiffs, Walker & Myers, on their account against the defendant? Answer: $196.03." There was judgment on the verdict for plaintiffs, and defendant excepted and appealed.

Winston & Matthews, for appellant.

A. O. Gaylord, for appellees.

HOKE, J. The court has carefully considered the exceptions noted, and are of opinion that substantial justice has been awarded, and that no reversible error appears inthe record. There was evidence tending to show that in January, 1907, plaintiffs and defendant entered into a contract by which defendant, in substance, agreed in writing to cut and deliver for plaintiffs, at their mill on Roanoke river, a large amount of lumber, over 1, 000, 000 feet, in quantity not less than 40, 000 feet per week, and sold and conveyed to plaintiffs the mules and wagons in question to secure performance of contract on part of defendant; that plaintiffs were to supply all rafting gear, to make all necessary advances, and to pay for said lumber the price of $4 per 1, 000 feet; that plaintiffs, at defendant's request, and by way of advancement, took up a mortgage on the mules in question, on which there was due, at the time of transfer to plaintiffs, the sum of $126.50, and had made all necessary...