Rankin v. Mitchem

• Citation: 53 S.E. 854,141 N.C. 277
• Parties: RANKIN et al. v. MITCHEM.
• Decision Date: 08 May 1906
• Court: United States State Supreme Court of North Carolina

53 S.E. 854

141 N.C. 277

RANKIN et al. v. MITCHEM.

Supreme Court of North Carolina

May 8, 1906

Appeal from Superior Court, Gaston County; Chas. M. Cooke, Judge.

Action by J. C. Rankin and others against D. W. Mitchem. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

In an action on a contract for the sale of cotton, held a question for the jury whether plaintiff was ready, willing, and able to deliver at the agreed time.

Action to recover damages for an alleged breach of contract on the part of the defendant in the purchase of 100 bales of cotton. The following issues were submitted: "(1) Did plaintiffs contract with the defendant to sell and deliver him 100 bales of strict middling cotton at Lowell, N. C., on February 20 1905, for the price of 9 5/8 cents per pound? Answer: Yes. (2) Was the time for the delivery of said cotton extended by mutual consent of the parties until April 10, 1905? Answer Yes. (3) Were the plaintiffs ready, able, and willing to deliver said cotton to the defendant at the time agreed upon for the delivery? Answer: Yes. (4) Did defendant refuse to receive and accept said cotton? Answer: Yes. (5) What damage have plaintiffs sustained by reason of defendant's refusal to receive said cotton? Answer: $949.55." From the judgment rendered, defendant appealed.

A. G Mangum and Tillett & Guthrie, for appellants.

O. F. Mason and Burwell & Cansler, for appellees.

BROWN J.

The controversy in this case, as presented, involves the consideration of the following contentions: Was the contract between the parties completed? Were the plaintiffs able, ready, and willing to deliver the cotton according to agreement? Was the contract a wagering contract?

1. The evidence for the plaintiffs is clear that a parol contract was entered into by plaintiffs on the one part and defendant on the other part whereby plaintiffs contracted to sell and deliver to defendant at Lowell on February 20, 1905, 100 bales of cotton at 9 5/8 cents per pound, and equally clear that defendant contracted to take and pay for the same. The proposition to sell seems to have been made by Rankin, who took Robinson in as a copartner in the transaction, with the consent of the defendant. At the time that defendant proposed to draw up the contract, a complete verbal agreement had been made between the parties. The contract was reduced to writing and signed by plaintiff Rankin and the defendant. The fact that Robinson did not sign it does not invalidate either the oral or written contract. The contract had been fully completed between the parties, and the reducing it to writing was not to make a new or different contract, but evidently to preserve the written evidence of what had already been assented to. The plaintiff Robinson affirmed what his copartner had done, for, according to Rankin's evidence, Robinson was en route to Charlotte and left Rankin to fix up the writing, and told Rankin, after he ""got it fixed up, to 'phone him at Charlotte and he would buy the cotton." It seems to be generally held that a binding contract may be made between parties although there is an understanding that it is to be reduced to writing, which writing is not completed by the signatures of all the parties. In the case of Sanders v. Fruit Company, 144 N.Y. 209, 39 N.E. 75, 29 L. R. A. 431, 43 Am. St. Rep. 757, the Court of Appeals of New York said: "Letters and telegrams which constitute an offer and acceptance of a proposition, complete in its terms, may constitute a binding contract, although there is an understanding that the agreement must be expressed in a formal writing, and one of the parties afterwards refuses to sign such agreement without material modification." Where the parties orally agree upon the terms of a contract, and there is a complete assent thereto, the suggestion to put it in writing at a subsequent time is not of itself sufficient to show that they did not mean the parol contract to be complete and binding without being put in writing. The question is largely one of intention. From the plaintiffs' evidence it is plain that the parties intended to contract, and did contract, before the written evidence of it was drawn up, and that defendant afterwards recognized the contract by asking an extension of time. The subject is fully discussed in 29 L. R. A. 431, note. The court very properly left it to the jury to determine whether the contract was made between the parties as alleged.

2. It is further contended by the defendants that the evidence is insufficient to warrant the finding of the jury in response to the second and third issues. The plaintiffs' evidence, if believed to be true, establishes facts amply sufficient to support those findings. Rankin testified that on February 20th he personally notified defendant that they had the cotton at Lowell and were ready to deliver it according to contract and that defendant asked for an extension of time for the delivery and payment of the cotton. The plaintiff further testified that again on March 20th he tendered the cotton; that he had it at Lowell and offered to deliver it there or at Charlotte or Gastonia. Defendant asked plaintiffs to carry it longer. At request of defendant plaintiffs carried it until April 10th, when the cotton was again tendered and defendant refused to take it and pay for it. According to Rankin's testimony, he then had the cotton at Lowell ready to deliver. The jury appear to have accepted Rankin's evidence as true, and, having done so, they could do nothing less than find the second and third issues for the plaintiffs, as his evidence proves three tenders and two extensions at defendant's request.

3. The defendant contends that the contract is,...