N. Jacobi Hardware Co v. Jones Cotton Co

• Citation: 124 S.E. 756
• Decision Date: 22 October 1924
• Docket Number: (No. 284.)
• Parties: N. JACOBI HARDWARE CO. v. JONES COTTON CO. et al.
• Court: United States State Supreme Court of North Carolina

124 S.E. 756

N. JACOBI HARDWARE CO.

v.JONES COTTON CO. et al.

(No. 284.)

Supreme Court of North Carolina.

Oct. 22, 1924.

(18S N.C.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Bill of Peace; I Jill Quia Timet.]

Appeal from Superior Court, New Hanover County; Calvert, Judge.

Action by the N. Jacobi Hardware Company against the Jones Cotton Companyand another. From a judgment sustaining a demurrer to complaint, plaintiff appeals. Affirmed.

E. K. Bryan, of Wilmington, for appellant.

W. H. Weatlierspoon, of Lanrinburg, for appellees.

CLARKSON, J. The plaintiff contends:

"On October 4, 1923, the defendant R..J. Jones ordered from the plaintiff one Fairbanks scale beam, 202—700 pounds, and a pair of cotton hooks, which plaintiff caused to be shipped C. O. D. to Jones, charging him therefor the sum of $44, and which Jones received and paid for. and turned same over to defendant Jones Cotton Company, for whom the defendant Jones now claims he was purchasing the scale beam, though the plaintiff did not know that Jones was buying the scale beam for the Jones Cotton Company. The defendant Jones ordered from plaintiff the Fairbanks scale beam, knowing that plaintiff did not manufacture same, but was selling such scale beam as furnished by the manufacturer thereof, and the plaintiff furnished to the defendant a scale beam manufactured by the manufacturer, and the scale beam was a Fairbanks scale beam, and the plaintiff did not know what use the purchaser intended to make of the article; but the defendants contend that the plaintiff in selling the scale beam made an implied, but not an express, representation and warranty that the scale beam would weigh correctly, and that the plaintiff had notice from the fact of the article the use for which it was purchased, and j that the defendant, relying upon the implied representation and warranty, used the scale beam in the purchase of cotton, and the scale beam not weighing correctly, the defendant claims that he was damaged in the sum of $2,000, and had demanded such damages of the plaintiff, and that the defendants had threatened to, and were going to sue the plaintiff for such damages; and the parties being unable to agree upon the law and to the extent of the responsibility and liability, the plaintiff brought this action to have the court to determine the dispute and adjudicate the rights, liabilities, and responsibilities of the respective parties. The plaintiff claiming that there was no implied warranty in the sale of the scales, the defendants contending that there was, and by the demurrer the defendants admit that there is a bona fide dispute existing between the parties, and that they had made claim against the plaintiff for the amount alleged, and that they had threatened and were going to bring suit against the plaintiff, and on this state of facts the judge sustained the demurrer and dismissed the action upon the ground that the courts were not open to the plaintiff on such allegations, but that the court would be open to the defendants, and upon their application the court would adjudge the rights and liabilities, but that it would not so adjudge them at the plaintiffs request, and upon plaintiff's complaint."

The defendants contend:

"This is an action instituted by the Jacobi Hardware Company, of New Hanover county, against the Jones Cotton Company, of Scotland county. In the complaint, the plaintiff does not allege a cause of action against the defendant, hut alleges that the defendant claims to have a cause of action against the plaintiff, and seeks to require the defendant Jones Cotton Company to go into the superior court of New Hanover county and establish its claim, or be forever denied the right to do so. if it has a just claim. In the early fall of 1023, the Jones Cotton Company, through one of its members, It. J. Jones, ordered cotton scales from the Jacobi Hardware Company. The scales were duly received and appeared to be accurate and in perfect condition. Without the poise, the beam balanced. With the correct poise, the scales would have been accurate. The poise which was received by the Jones Cotton Company should have weighed 10 pounds, and the poise, which was received, had the figures 10 moulded on the poise, as an indication of its weight. After the Jones Cotton Company had used the scales for a considerable time, the purchasers of cotton from the Jones Cotton Company began to complain about the shortage in weights. After an exhaustive investigation, it was finally discovered that the. poise, which should have weighed 16 pounds, weighed only 15 pounds. At that time, the loss of the Jones Cotton Company, by reason of the erroneous weight of the poise, had amounted to approximately $2,001). The defendant advised the hardware company of the situation and the loss which it had suffered, and asked that the hardware company make good the loss. The matter was left open for the hardware company, and the present suit was instituted within a short time thereafter. In apt time, the defendant tiled a demurrer to the complaint, as will appear in the record, upon the ground that the plaintiff had not stated facts sufficient to constitute a cause of action. The demurrer was sustained."

Plaintiff cites C. S. § 020. which is us follows:

''Parties to a question in difference which might be the subject of a civil action may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The judge shall hear and determine the case, and render judgment...