Standard Sand & Gravel Corp. v. McClay

• Decision Date: 03 March 1926
• Docket Number: 88.
• Citation: 131 S.E. 754,191 N.C. 313
• Parties: STANDARD SAND & GRAVEL CORPORATION v. MCCLAY ET AL.
• Court: North Carolina Supreme Court

131 S.E. 754

191 N.C. 313

STANDARD SAND & GRAVEL CORPORATION v. MCCLAY ET AL.

No. 88.

Supreme Court of North Carolina

March 3, 1926

Appeal from Superior Court, Harnett County; Devin, Judge.

Action by the Standard Sand & Gravel Corporation against A. W McClay and the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendants appeal. Affirmed.

Seller furnishing road materials in accordance with contract can recover price, if buyer failed to pay, and seller received nothing from sale of material on buyer's rejection.

The plaintiff instituted this action to recover from the defendant the sum of $833.23 for eleven cars of gravel and eight cars of sand, which the plaintiff alleged the defendant purchased for constructing project No. 364-B, contract for which had been awarded by the state highway commission to the defendant. The defendant McClay denied that he had contracted to purchase said material for said project from the plaintiff, and notwithstanding the fact that no contract had been made, the plaintiff shipped certain material to him for use in said road construction, but that said material so shipped was rejected as unfit for the work by the resident engineer and bridge inspector for the state highway commission. There was further evidence tending to show that the material so shipped was sold by the Atlantic Coast Line Railroad for demurrage charges and was never incorporated in the work.

The defendant McClay gave bond for the faithful performance of his contract with the state highway commission, said bond having been duly executed by the defendant Fidelity & Casualty Company. The portion of the contract and bond defining the liability of the defendant casualty company is as follows:

"Well and truly pay all and every person furnishing material or performing labor in and about the construction of said roadway, all and every sum or sums of money due him, them, or any of them for all such labor and materials for which the contractor is liable."

The defendant bonding company contends that by reason of the fact that none of said material was actually used by the contractor and incorporated in said work and was rejected and sold by the railroad company to other parties, therefore it was not liable in any event for said material.

The evidence disclosed that on September 16, 1922, the defendant McClay wrote a letter to the plaintiff as follows:

"I will want your company to ship the sand and gravel to Raeford and also to this job 364-B. I surely would like for you if you can to ship me one or two cars of gravel and one of sand to Raeford right away as my men are there and waiting. Please steal me one or two to help me out. Will soon be ready here. Now I am going to depend on you. Hoping to see you soon, I am yours, etc."

On November 16, 1922, the defendant McClay wrote the plaintiff as follows:

"Can you ship me sand and gravel to Verona and Jacksonville? If so, let me hear from you. I need a good deal at these plants."

On November 20th plaintiff wrote the defendant McClay:

"I think we can handle the Verona order O. K. but could not promise you shipments before the first of the month on gravel, but can ship the sand at any time. Please advise if this is satisfactory and the approximate quantities you will want shipped to Verona."

In response to this letter, the defendant wrote the plaintiff on November 22, 1922, answering the same and using the following language:

"I received your letter to-day. I surely wish you could send me at least two cars of gravel to Jacksonville right away as I have two culverts I want to get in before the end of December, and I want you to ship to Verona just as soon as you can. If you can see your way to ship before the first of the month I wish you would do so. * * * I will need about 1,100 cubic yds. of gravel at Verona and Jacksonville and about 450 cubic yds. of sand."

There was further evidence on behalf of the plaintiff tending to show that the defendant McClay had given an order for the sand and gravel prior to the time the letter was written with reference to making shipments, and that the order had been accepted by the plaintiff.

On the question of refusal of a state engineer to accept the material shipped by plaintiff as suitable for project 364-B, there was evidence from the plant inspector of the state highway commission, whose duty it was to inspect the materials sent out by the plaintiff, that the materials shipped by plaintiff met the requirements of the state highway commission. There was also evidence to the effect that the sand and gravel shipped by the plaintiff was not up to specifications.

The resident engineer for the state highway commission, in charge of this particular project, testified as follows:

"I never had a chance to permit the use of this material, because Mr. McClay turned it down after my inspection before I had an opportunity to turn it down after taking samples. * * * I had instructions from Mr. Hutchinson, head of the inspection bureau of the state highway commission, not to turn it down if it had inspection cards on it, but I also had further instructions to send samples to the testing department. * * * I did not send it because it was turned down before I did send it. Mr. McClay did not wait to get it tested, but refused it himself."

The issues and answers thereto were as follows:

(1) Is the defendant A. W. McClay indebted to the plaintiff, and, if so, in what amount? A. $833.23.

(2) Is the defendant Fidelity & Casualty Company of New York liable thereon as surety? A. Yes.

Judgment was entered upon the verdict, and the defendant appealed.

I. M. Bailey, of Raleigh, and Marshall T. Spears, of Lillington, for appellants.

Chas. Ross, of Raleigh, for appellee.

BROGDEN J.

Three questions are presented for determination: (1) Was there sufficient evidence to establish a contract of sale and delivery of materials? (2) Was the defendant relieved of liability by reason of rejection of said material by the resident engineer of the state highway commission? (3) Is the defendant casualty company liable under its bond for said materials, it being admitted that they were not actually incorporated in the work?

In reference to the first question presented, it is established law that in order to constitute a binding contract the offer and acceptance must be in identical terms and unequivocal. The rule is thus stated by Stacy, J., in Rucker v. Sanders, 109 S.E. 857, 182 N.C. 609:

"There is no effort to circumvent or deny the well-settled principle that an offer must be accepted in its exact terms in order that a contract should arise therefrom, and any attempt to impose new conditions or terms in the acceptance, however slight, will ordinarily deprive it of any efficacy." Overall Co. v. Holmes, 119 S.E. 817, 186 N.C. 428; Savannah Sugar Refining Corporation v. Sanders, 129 S.E. 607, 190 N.C. 203.

Applying this rule to the facts as disclosed by the record, it appears that on November 16th the defendant wrote the plaintiff:

"Can you ship me sand and gravel to Verona and Jacksonville?" On November 20th, the plaintiff wrote the defendant:

"I think we can handle the Verona order O. K. but could not promise you shipment before the first of the month on gravel, but can ship the sand at any time. Please advise if this is satisfactory and the approximate quantities you would want shipped to Verona."

In response to that letter, on November 22d, the defendant wrote the plaintiff:

"I want you to ship to Verona just as soon as you can. If you can see your way to ship before the first of the month I wish you would do so. I will need about 1,100 cubic yds. of gravel and...