Simpson v. Pegram

• Citation: 17 S.E. 430,112 N.C. 541
• Parties: SIMPSON et al. v. PEGRAM et al.
• Decision Date: 18 April 1893
• Court: North Carolina Supreme Court

17 S.E. 430

112 N.C. 541

SIMPSON et al. v. PEGRAM et al.

Supreme Court of North Carolina

April 18, 1893

Appeal from superior court, Forsyth county; Armfield, Judge.

Action by Simpson and Bass against Thomas H. Pegram, and J. C Buxton and J. S. Grogan, assignees of said Pegram for the benefit of creditors, to recover the proceeds of flour alleged to have been consigned to Pegram by plaintiffs for sale by him as a broker on commission, and which was transferred by him to said assignees, and sold by them. Plaintiffs claimed the right to follow the property into the hands of the assignees. The defendants answered that plaintiffs had sold the flour to defendant Pegram, and denied that it was shipped to him on commission. The issues were submitted to the jury, who found that the transaction was a consignment, and not a sale, and rendered a verdict for plaintiffs. From a judgment thereon, defendants appeal. Affirmed.

Watson & Buxton, for appellants.

Glenn & Manly and Jones & Kerner, for appellees.

SHEPHERD C.J.

It is unquestionably true, as contended by the defendants' counsel, that where the terms of a contract have been ascertained, or where it is evidenced by a written instrument, or, as in this case, by written correspondence between the parties, "the entire construction of the contract--that is, the ascertainment of the intention of the parties, as well as the effect of that intention--is a pure question of law, and the whole office of the jury is to pass on the existence of the alleged written agreement." Spragins v. White, 108 N.C. 449, 13 S.E. Rep. 171. If, however, the language used is doubtful, in the sense that it requires the scientific exposition of experts, or explanation by evidence of the usage of trade or other extraneous circumstances, such testimony is admissible, and should, under appropriate instructions, be submitted to the jury. 1 Greenl. Ev. 280. It seems that the words "less brokerage, 10 cents per barrel," as used in the correspondence between the parties, have, under certain circumstances, a meaning peculiar to dealings between commission merchants engaged in the flour business, in so far as they relate to the question of whether there is a sale or a consignment. This, at least, appears to have been the view of the defendants, who introduced testimony tending to show such meaning under "the customs of trade in sales of flour by the car load like the one in controversy." There may...