Peters Grocery Co v. Collins Bag Co

• Citation: 142 N.C. 174,55 S.E. 90
• Parties: PETERS GROCERY CO. v. COLLINS BAG CO.
• Decision Date: 02 October 1906
• Court: United States State Supreme Court of North Carolina

55 S.E. 90

142 N.C. 174

PETERS GROCERY CO.

v.COLLINS BAG CO.

CO.

Supreme Court of North Carolina.

Oct. 2, 1906.

COLLINS BAG

1. Statutes—Construction — Giving Effect to Entire Statute.

A statute composed of several sections relating to the same subject must be considered as a whole in ascertaining the meaning of any one section, and each section must be restricted in its application by the language of any other section when the purpose so to do is apparent.

[Ed. Note.—For cases in point, see vol. 44, Cent Dig. Statutes, §§ 282-288.]

2. Process—Publication — Conditions Precedent—Statutes—Construction.

Revisal 1905, § 442, providing that where it is made to appear by affidavit to the satisfaction of the court that, after due diligence, a defendant cannot be found within the state, an order shall be made for the publication of the process, requires the fact of the inability to find a defendant to be established by affidavit.

[Ed. Note.—For asecs in point, see vol. 40, Cent. Dig. Process, §§ 108-120.]

3. Same—Issuance of Summons—Necessity-Statutes—Construction.

Under Revisal 1905, §§ 429, 430, 442, providing that an action shall be commenced by summons and personally served by the sheriff on defendant, and that when it is made to appear by affidavit that after due diligence defendant cannot be found in the state, an order shall be made for publication, an action must be commenced by issuing a summons, unless defendant is not within reach of the process of the court, when it must be commenced by the filing of an affidavit showing that fact, followed by publication.

4. Sales — Contract — Breach — Remedy of Seller—Action for Damages.

Where a buyer fails to pay for goods delivered, and evinces a purpose either not to pay for future deliveries called for or not to abide by the terms of the agreement, but to insist on different terms, whether in respect to price or to any other material stipulation, the seller may rescind and sue for the goods delivered.

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, § 263.]

5. Same.

A seller agreed to sell to a buyer a specified number of peanut bags at a price named, and also a specified number of cotton sheets. The agreement was modified by a reduction of the price and an allowance of a credit of 10 days. The cotton sheets were delivered according to contract, but the buyer refused to pay for them, and insisted on a credit of 30 days to pay for all the goods. Held, that the seller was entitled to rescind and recover for the goods delivered.

Appeal from Supreme Court, Edgecombe County; G. W. Ward, Judge.

Action by the Peters Grocery Company against the Collins Bag Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The suit was commenced before a justice of the peace, first by a summons dated December 31, 1904, returnable January 3, 1905, on which there was no return, and then by publication dated January 16, 1905, and returnable the 16th day of the next month. There was no evidence that the summons was ever actually issued by the justice. The defendant relied on the fact that no summons had been issued, and upon sundry alleged defects in the mode of publication in support of a motion to dismiss the action which it submitted after entering a special appearance for the purpose. Plaintiff sued for $172.50 alleged to be due as damages for failing to ship to them a certain number of peanut bags as by contract of April 30, 1904, the defendant was required to do. It appears that on April 30, 1904, the defendant agreed to sell to the plaintiff 10, 000 to 15, 000 peanut bags of a specified description at a price named, the price to stand if the market advanced, but if the market declined, the defendant had the option to furnish the bags at the lowest price or to cancel the contract. There was a memorandum at the foot of this agreement calling for the shipment of 1, 000 cotton sheets. It was shown that this memorandum was made by defendant's traveling salesman and the order for the sheets purports on its face to have been made by telephone. On the same day the salesman consolidated the two orders into one, which was signed by the plaintiff and addressed to the defendant. It was in the usual form of an order for goods, showing quantity, description, and price of the bags and sheets or burlaps, but not fixing the day of payment or time of credit. All the directions in the memorandum as to time and method of shipment and dating of bills, refer indiscriminately to the bags and sheets, as if they had been ordered at the same time. The sheets were deliverable in August, 1904, and the bags from October, 1904, to March, 1905. On June 11, 1904, the plaintiff by letter advised the defendant that the goods had been offered to them at lower prices, and asking if they "would meet them." This letter contained an itemized statement of the articles with the reduced price for each, and opposite these articles the following: "All delivered 10 days net" Defendant replied June 14, 1904, that it would meet the prices named. The subsequent correspondence shows that the cotton sheets were shipped by the defendant according to the contract and the plaintiff failed to pay for the same, its draft, which was sent to the defendant, having been afterwards presented and then returned by the collecting bank as unpaid, plaintiff all the time insisting that it was entitled to terms materially different from those contained in the contract of April 30th as modified by the letters of June 11th and 14th. As the plaintiff failed to pay for the sheets, and insisted on being allowed terms different from those in the contract, the defendant refused to ship the peanut bags. This was on December 2, 1904, when the purchase price had been long overdue. On September 19, 1904, the plaintiff wrote the defendant that they were entitled to 60 days' credit on the bags and $8 discount on their draft On the same day the defendant wrote to the plaintiff that the business had proved to be so unsatisfactory, as it had made so many threats and so often insisted on new terms, that they preferred to cancel the contract, and then requested payment of the draft sent for goods already purchased and shipped. Acknowledging receipt of this letter, plaintiff, on the 20th replied that it was willing to relieve the defendant of the contract, as it could do as well elsewhere, but before con sidering itself as released, the defendant must wait for a letter to that effect Then comes the following passage: "We also desire to call your attention [to the fact] that there are no terms specified in the contract of April 30th, therefore, we will expect the same terms that we have been getting from John T. Bailey and other parties which is 30 days." The draft for the sheets having been returned by the bank and the plaintiff still insisting on terms which, as contended by the defendant, were not embraced by the contract, the defendant on December 2, 1904, wrote to the plaintiff rescinding the agreement and in that and subsequent letters declined to ship the bags. The court charged the jury that, if they found the facts to be as disclosed by the evidence, they should answer "No" to the issue, "Is the defendant indebted to the plaintiff, and, if so, in what amount? " The jury answered the issue accordingly. Judgment was entered for the defendant, and the plaintiff appealed.

W. O. Howard, for appellant.

G. M. T. Fountain, for appellee.

WALKER, J. (after stating the case). An important question Is distinctly presented in this case, namely, whether the issuance of a summons is necessary before the procedure by publication, when the defendant is a nonresident of the state? There appears, from the decisions of this court to have been some diversity of opinion upon this question, and It being of the first moment that it should be settled, as It affects the integrity of judicial proceedings, we have given it the most careful consideration and have reached a conclusion entirely satisfactory to ourselves after thoroughly examining the several statutory provisions relating to the matter and weighing the reasons advanced on either side by those who have discussed it. Attachment, other than the common-law writ which issued out of the common pleas upon the nonappearance of the defendant at the return of the original writ, had its origin in the civil law and afterwards was adopted in England in the form of a custom of the London merchants and out of this, as modified and extended by statute, has grown the modern law in respect to this remedy. 4 Cyc. 396, 397; 1 Shinn on Attachment, §§ 1, 2. It was resorted to in order to compel the attendance of the debtor as well as to afford a security to the creditor.. Under our former statutes, when the defendant was a nonresident, it issued either in the form of an original or a judicial attachment and without any notice until there had been a levy or caption of the goods of the debtor, when advertisement was required if the defendant resided without the jurisdiction. Rev. Code, c. 7, §§ 12, 13. By section 14 it was provided that "no judicial process shall be issued against the estate of any person residing without the limits of the state.unless the same be grounded on an original attachment, or unless the leading process of the suit, has been executed on the person of the defendant when within the estate." This was the method of proceeding against nonresidents until the adoption of the Code system. The remedy then became ancillary to the principal suit for the recovery of the debt. But there was no essential change in the procedure by which the defendant was brought before the court and compelled to appear and submit his person to its jurisdiction or lose his property as the penalty for his default, or so much thereof as was necessary to satisfy the plaintiffs' demand. The very nature of the case, as shown by the fact of nonresidence, made it clearly futile to attempt to serve him personally. As he was presumed to...