Standard Crown Co., Inc. v. Jones

• Citation: 145 S.E. 5,196 N.C. 208
• Decision Date: 24 October 1928
• Docket Number: 252.
• Parties: STANDARD CROWN CO., Inc., v. JONES.
• Court: North Carolina Supreme Court

145 S.E. 5

196 N.C. 208

STANDARD CROWN CO., Inc., v. JONES.

No. 252.

Supreme Court of North Carolina

October 24, 1928

Appeal from Superior Court, Wake County; Townsend, Special Judge.

Suit by the Standard Crown Company, Incorporated, against Harry E Jones, trading as the Jones Bottling Works. From the judgment following the referee's report, plaintiff appeals. Affirmed.

Finding that customer's order to make up bottle crowns was given with understanding that he would accept crowns only as ordered out held supported by evidence.

Plaintiff sued the defendant for the purchase price of certain crowns manufactured by the plaintiff and sold to him for use in bottling soft drinks. The defendant denied that there was an unconditional contract for the purchase of crowns, and thereupon the cause was duly committed to a referee as provided by law. After hearing the evidence and argument of counsel, the referee found certain facts and based thereon certain conclusions of law.

The pertinent findings of fact were as follows:

"(6) Early in January, 1920, an agreement was entered into by plaintiff, through said Edward T. Fleming as Secretary-Treasurer of said company, and the defendant, in Washington, D. C., whereby, for the convenience and benefit of the plaintiff, the defendant was to place with plaintiff an order for a number of gross of crowns to be made up specially with the understanding and stipulation that the defendant would not be required to accept or pay for same except as said crowns might be ordered out by the defendant, and such crowns so accepted by the defendant were to be billed him at market price when shipped, and pursuant to and as a part of said contract the defendant sent to said Fleming the following letter, to-wit 'Standard Crown Co., Philadelphia, Pa. Gentlemen: Make me up in stock for shipment when ordered: 5,000 gross My-Coca Crowns. 5,000 gross smile Crowns. 2,500 gross Root Beer Crowns. 2,500 gross Golden Rod Ginger Ale Crowns. We want these crowns made up Special with Jones Bot. Wks. on the top and Raleigh, N. C., at the bottom. Thanking you for your prompt attention. Yours very respectfully, Jones Bot. Wks. Harry E. Jones. Enclosed find sample Golden Rod Ginger Ale Crown. Leave off the lithia compound.'

"The plaintiff by letter written by said Fleming, replied as follows, to-wit: 'Jan. 26, 1920. Jones Bottling Works Raleigh, N.C. Gentlemen: Your letter of the 12th inst. ordering 5,000 gross My-Coca crowns, 5,000 gross Smile crowns, 2,500 gross root beer crowns, 2,500 gross Golden Rod Ginger Ale crowns, received and we note that you want all these made up with "Jones Bottling Works, Raleigh, N. C." appearing on the crowns. We have already proceeded with this order and as soon as they are ready we will notify you in order that you may commence ordering out against this stock. With the writer's kind personal regards, and thanking you for this business, we are, Yours very truly, Standard Crown Company, Inc. (signed) Sec. & Treas.'

"The aforesaid letter and reply were part of the aforesaid parol contract and agreement between said parties."

"(9) There was, in January, 1920, and thereafter a well-recognized custom and practice of the trade, known to the defendant at the time of the execution of his contract with the plaintiff, that a customer would pay to the seller three cents per gross for obsolete crowns made up for such customer and not ordered out, and the plaintiff under his interpretation of the letter (Exhibit B) was authorized to specially decorate 15,000 gross of crowns and thereafter shipped the defendant a total of 7,150 gross, leaving 7,850 gross on hand at 3 cents per gross, amounting to $235.00 in which said sum defendant is further indebted to the plaintiff."

Upon the foregoing findings of fact the referee found that the defendant was indebted to the plaintiff in the sum of $783.48 with interest from October 3, 1927, on the principal sum of $647, and the costs of the action. Both parties filed exceptions to the evidence, and the plaintiff filed exceptions to the findings of fact and conclusions of law made by the referee. Thereupon the question was submitted to the judge, who entered judgment approving and adopting the finding of...