Sellars v. Johnson
| Decision Date | 31 January 1871 |
| Citation | 65 N.C. 104 |
| Court | North Carolina Supreme Court |
| Parties | B. A. SELLARS and others, Administrators of THOMAS SELLARS, v. THOMAS D. JOHNSON. |
When the terms of a contract are in writing, or otherwise ascertained, the construction of the contract is for the Court and not for the jury. Hence, where it appeared that a person having pork to sell in the year 1863, wrote to the buyer as follows: and the buyer took the pork, and sent a check in the following words:
“YANCEYVILLE, N. C., 3rd Dec., 1863.
$3688. Cashier of the Bank of Cape Fear, Greensboro', N. C., pay to the order of Thomas D. Johnson, thirty-six hundred and eighty-eight dollars.
(Signed,) JOS. J. LAWSON, Cash'r.,
and endorsed “Pay Thomas Sellars or order.
(Signed,) THOMAS D. JOHNSON.”
It was held, that the contract did not require the buyer to send a check payable in N. C. bank notes, and the check he sent was a compliance with the terms of it.
If a seller receive a check drawn on a bank, which is endorsed to him, and which he might have refused as not being in accordance with his contract, but kept it, presented it to the bank for payment, and sued upon it, instead of repudiating it and returning it to the buyer, it amounts to an acceptance of the check in satisfaction of the article sold, and the liability of the buyer is then only upon his endorsement.
The case of Haight v. Grist, 64 N. C. Rep. 739, cited and approved.
This was an action of assumpsit under the former system tried before his Honor Tourgee, J., at the Fall Term, 1869, of the Superior Court of RANDOLPH County. The plaintiffs declared in three counts. 1st, upon a check, in the following words and figures:
Cashier of the Bank of Cape Fear, Greensboro', N. C., pay to the order of Thomas D. Johnson, thirty-six hundred and eighty-eight dollars.
+----------------------------------+
¦No. 2262.¦JOS. J. LAWSON, Cashier.¦
+----------------------------------+
With the following endorsement--Pay Thomas Sellars or order.
THOMAS D. JHONSON.”
2d. For 1844 lbs. pork, sold and delivered by the plaintiffs' intestate to the defendant at $2 per lb. in North Carolina money.
3d. Upon a quantum valebat for 1844 lbs. pork sold and delivered by the plaintiffs' intestate to the defendant on or about the 2d December, 1863.
The facts as they appeared on the trial will be found sufficiently stated in the opinion of the Court. The jury under the charge of his Honor found a verdict for the defendant, and from the judgment rendered thereon, the plaintiffs appealed.
Gorrell for the plaintiff .
Scott and Hill for the defendant .
Where the terms of a contract are in writing, or otherwise ascertained, the construction of the contract is for the Court, and not for the jury. All that passed between the parties in this case was in writing, and all the writings were in evidence except a letter from the defendant to the plaintiff, in regard to which there was contradictory evidence. If, therefore, that letter would alter the contract as it appears from the other writings, then its contents would have been a question for the jury, but we are of the opinion, that taking its contents to be as alleged by the plaintiff, it would not alter the case. The case may be considered, therefore, as if all the evidence of the contract was in writing, and the terms ascertained.
The plaintiffs' intestate wrote to the defendant as follows:
DECEMBER 2D, 1863.
Dear Sir: I send you about nineteen hundred pounds of pork to your request. Please give me a check on the Bank of Cape Fear, at Greensboro', for the pork, at two dollars per pound, by the boy.
+--------------------------+
¦(Signed:)¦THOMAS SELLARS. ¦
+--------------------------+
The defendant received the pork, and sent to the plaintiffs' intestate, by the boy, the following check:
BANK OF YANCEYVILLE,
Yanceyville, N. C., 3 d December, 1863.
$3688. Cashier of the Bank of Cape Fear, Greensboro', N. C., pay to the order of Thomas D. Johnson, thirty-six hundred and eighty-eight dollars.
+-----------------------------------+
¦(Signed:)¦JOS. J. LAWSON, Cash'r. ¦
+-----------------------------------+
The said check was endorsed as follows:
Pay Thomas Sellars or order.
+-----------------------------+
¦(Signed:)¦THOMAS D. JOHNSON. ¦
+-----------------------------+
The question is, did the defendant comply with the letter of the plaintiffs' intestate?
We think he did, in letter and spirit.
But the plaintiff says, that, admitting it to be so, if the letter and check were all, yet, there are other portions of the correspondence which explain the letter and check, and show that the defendant was either to pay N. C. bank notes, or send a check payable in N. C. bank notes. And he relies upon the following letter:
NOVEMBER 17TH, 1863.
Mr. Thos. D. Johnson: If you wish to buy a lot of pork, let me know forthwith. * * * * Owing to the great fluctuation in Confederate currency, I prefer not selling for that money. Therefore, let me know what you will pay in N. C. bank notes, or a check on the Cape Fear bank at Greensboro'.
+-------------------------+
¦(Signed:)¦THOS. SELLARS. ¦
+-------------------------+
The plaintiff insists that the proper construction of this letter is, that the defendant was to pay in N. C. bank notes, or give a check payable in such notes. We do not think so. So far from its being required that the check should specify the funds in which it should be paid, it might have been properly rejected if it...
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...Am. St. Rep. 217;Strong v. King, 35 Ill. 9, 85 Am. Dec. 336;Woodville v. Reed, 26 Md. 179;Barnard v. Graves, 16 Pick. (Mass.) 41;Sellars v. Johnson, 65 N. C. 104; Strong v. Hart, 6 B. & C. 160; Ex parte Whittemore, 3 Mont. & A. 627. By putting the checks in circulation, and accepting a subs......
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