N. & W. Overall Co. v. Holmes

• Decision Date: 14 November 1923
• Docket Number: 252.
• Citation: 119 S.E. 817,186 N.C. 428
• Parties: N. & W. OVERALL CO. v. HOLMES.
• Court: North Carolina Supreme Court

119 S.E. 817

186 N.C. 428

N. & W. OVERALL CO. v. HOLMES.

No. 252.

Supreme Court of North Carolina

November 14, 1923

Appeal from Superior Court, Franklin County; Cramner, Judge.

Action by the N. & W. Overall Company against P. C. Holmes. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

This was a suit for $108, price of a lot of overalls and shirts sold by plaintiff to defendant, commenced in a justice of the peace's court, and on appeal heard anew in the superior court. The plaintiff introduced the original order, alleged to be signed by defendant, for a lot of overalls and shirts and an itemized verified statement of account, in accordance with the statute. The following is a copy of the order and verified account:

                 "N. & W. Overall Co
                 Lynchburg, Va
                 Date: 10/18/21
                 Sold to--P. C. Holmes
                 Address--Louisburg, N. C
                 Routing--Frt. N&W. When ship--Dec. 1; no hurry.
                 Terms--2% off 10 days; 30 days, net
                ---------------------------------------------------
                S. B. No. Case No. Rating. Ledger. Date Billed.
                ---------------------------------------------------
                 16"1
                 14"3 W. D. 504 11""28""21
                ---------------------------------------------------
                Quantity. Style. Price. Amount.
                ---------------------------------------------------
                 5 109"A 36to42 15.00 $75.00
                 1 1 15to17 11.00 11.00
                 1 2 15to17 11.00 11.00
                 1 3 15to17 11.00 11.00
                 ------------
                 $108.00
                ---------------------------------------------------
                

Hold till December 1st.

Rated W. D. I have found him prompt to meet his obligations.

All goods sold f. o. b. factory. All orders subject to approval of office, and not subject to cancellation.

Buyer: P. C. Holmes.

Salesman: E. S. Taylor."

"Exhibit B.

Nov. 28, 1921.

#190"A. 5 doz. overalls, $15.00 ..	$ 75 00
1 1 doz. shirts, $11.00 ......	11 00
2 1 doz. shirts, $11.00 ......	11 00
3 1 doz. shirts, $11.00 ......	11 00
	-------
Total	$108 00

Shipped via N. & W. Ry. Co."

The plaintiff rested and the defendant was introduced as a witness, who testified as follows:

"I remember the occasion when Mr. Taylor, the agent of the N. & W. Overall Company, sold me this bill of goods. The prices agreed upon at that time were $15 a dozen for the overalls and $10 a dozen for the shirts. The agent gave me a duplicate of the order at the time. The paper I have in my hand is the duplicate order given me. [ Order introduced, which is in exact words and figures as the order introduced by plaintiff, except the price of the shirts was $10 a dozen instead of $11.]

The salesman came to my store and sold me the goods; had samples with him. I received a bill for the goods three or four weeks after the salesman was here, and the shirts had been billed at $11 a dozen instead of $10. The N. & W. Overall Company wrote me and asked me to put in a claim for them with the Seaboard Air Line Railway Company, and I sent that bill with the claim. On the bill the shirts were billed at $11 a dozen instead of $10, and when I was notified that the goods were at the depot I went to the depot and refused to accept the goods because they were billed at $11. I never did accept the goods, and they were afterwards burned in the fire at the depot."

Several letters passed between the parties, and the letter of May 3d, 1922, was sent to plaintiff by defendant, which is as follows:

"P. C. Holmes,

Dealer in General Merchandise, Gas, Oils and Greases.

Louisburg, N. C., May 3, 1922, R. F. D. 2. N. & W. Overall Co.--Dear Sir: The shipment of goods on December 7th refused, did not come up to sample, and I refused on the 8th day of December, and notified you at once, and you elected to allow same to remain on hand over thirty days before fire. I had nothing more to do with them after I refused them, and you trusted to the railroad company to let them remain; they refused to pay the claim.

Yours truly, P. C. Holmes."

Defendant further testified:

"I think it was on December 8th I was notified that the goods were in the depot. I think it was Mr. Hale, an employee at the depot, that I notified I would not accept the goods. I told him I refused the goods on account of the price being too high. The goods were left at the depot. I never put in any claim with the railroad company until requested to do so by the N. & W. Overall Company; I know that the Overall Company did put in claim before they asked me to put in a claim. I received a letter from the railroad company to that effect after I put in claim at the request of the N. & W. Overall Company. The carbon copy of the order which I have here is the one given me by the salesman. I did not make any changes in the order after it was given to me. I just stuck the order on the file, and did not think any more about it until this came up. If it was changed, it was changed by the agent before he gave it to me."

On cross-examination, the defendant said, in part:

"When the original order was written there was a sheet of carbon paper put between, and the carbon copy of order was given to me. There was no question about the first item on the bill, but the shirts should have been $10 instead of $11. I do not think from the back of the carbon copy that it was originally $11 and changed to $10. It is not my handwriting on the bottom of the original order. I refused the shipment because the price was made me in the order of $10 a dozen, and the account rendered at $11."

He stated that in his letter of May 3d he meant "price" instead of "sample." It was a mistake if he said goods did not come up to "sample"; he meant "price."

The Seaboard Air Line Company's report of refused and unclaimed freight shows the goods were shipped November 30, 1921; arrived at Louisburg, December 7, 1921. Defendant was notified December 8, 1921, and on the same day refused shipment; note made: "Refused--consignee says price too high." The goods were burned in the depot about 30 days after their arrival at Louisburg.

The following issue was submitted to the jury:

"In what sum is the defendant indebted to the plaintiff?"

The court below charged the jury as follows:

"One issue is submitted to you and that is: In what sum is the defendant indebted to the plaintiff? And if you find the facts to be, by...