Storey v. Stokes
| Decision Date | 05 November 1919 |
| Docket Number | (No. 393.) |
| Court | North Carolina Supreme Court |
| Parties | STOREY. v. STOKES et al. |
Appeal from Superior Court, Davidson County; Lane, Judge.
Action by W. M. Storey, trading as W. M. Storey Lumber Company, against C. W. Stokes and J. F. Stokes, trading as Valley Lumber Company. Judgment for plaintiff, and defendants appeal. No error.
Plaintiffs alleged: That defendants are engaged in the business of operating sawmills and selling lumber, at Newsom, N. C, and the plaintiffs are engaged in the business of buying lumber and selling the same at wholesale to the trade, at the city of New York. Plaintiffs further allege that on the 17th day of April, 1917, the plaintiffs and defendants made a contract by the terms of which contract the defendants sold to the plaintiffs a lot of lumber, as follows, to wit: 500, 000 feet 1x4 and up, S2S, @ $14.00. 2 cars 2x4-10 and up, S1S and 1E, @ $14.00. 250, 000 feet 2x4, 6, 8, 10 and 12-10 and up. S1S and 1E. And the defendants agreed to deliver said lumber to the plaintiffs f. o. b. cars on a 12-cent rate of freight to Norfolk, Va. That defendants failed to keep and perform the contract and to deliver the lumber as promised, and when they were requested by plaintiffs to do so, and because of this breach and failure to deliver, the plaintiffs were compelled to buy lumber, in the open market, at higher prices than those named in the contract for the purpose of filling their contracts with their customers, and by reason thereof they were damaged to the amount of $5,527, for which amount they demand judgment.
Defendants denied that they were engaged in operating sawmills, but admitted that they were engaged in selling lumber, and that plaintiffs were engaged in buying it to be sold at wholesale to the trade, as alleged; they deny the contract and the other material allegations of the complaint.
The jury rendered a verdict for the plaintiffs, and assessed their damages at $2,125. Judgment was entered thereon, and defendants appealed.
Raper & Raper, of Lexington, for appellants.
J. Gilmer Korner, Jr., Louis M. Swink, and Fred S. Hutchins, all of Winston-Salem, and Walser & Walser, of Lexington, for appellee.
WALKER, J. (after stating the facts as above). The defendants have reserved several exceptions as to evidence, and other matters affecting the merits of the case and the damages. The objections to evidence will be postponed for consideration until we have passed upon the other alleged errors, which we will discuss in the order of their assignment.
The court properly submitted to the jury the controverted question whether the contract, which was made by Stemple, for the plaintiffs, with Stokes, for the Valley Lumber Company, had been accepted and confirmed by the plaintiffs. What is the contract, is a question of fact for the jury (Devries v. Haywood, 64 N. C. 83); but when the contract is admitted, or proven, its construction is a question of law for the court There was some evidence here that the contract made by Stemple had been confirmed, and, moreover, that defendants so understood it. It was for the jury to say, by their verdict what was the truth of the matter. The instruction of the court in this respect was simple, direct and clear, and left it to the jury to find whether there had been an approval by the plaintiffs of the terms of the Stemple contract, which was made subject to their ratification. We do not think that this was to be determined solely by the letters or other writings, upon a legal construction of them, but upon the evidence, oral and written, because it was a question of intention; that is, what the parties said, and did, and what they mutually meant by their acts and conduct. The defendants in several letters, particularly the one of May 14, 1917, complain, not that the parties had disagreed about the specific terms of the contract, but that they had been disappointed in getting the necessary stock, which they thought had been secured, and promised, if they could get the cars accepted for immediate shipment, that they would send forward at least one car, regretting their inability to serve the plaintiffs better. They still did not ship, and plaintiffs' letters then urge them to do so and notify them that they have made contracts of resale. Storey went to Newsom, N. C, talked with the defendants, and he says they promised "to get off two cars promptly." When defendants gave one excuse after another for not shipping-failure of parties, with whom they had contracted for stock, to deliver the same, embargo of the railroad companies on shipments, and lack of permits—plaintiffs promised to help them out in regard to these matters, and did secure a special permit The correspondence tends to show that defendants were not attempting to perform their contract, and plaintiffs complained of it, and charged that their Mr. Stemple had informed them of defendants' selling to other parties the lumber which they had contracted to ship to them. The excuse for not shipping the lumber, as stated in letters of May 21 and July 4 of 1917, and in others, seemed to be that they could not get the stock. They do refer in one of the, letters to some disagreement as to the way the lumber should be worked and the terms of settlement; but, when we examine the lengthy correspondence, we can easily discover some evidence for the jury to the effect that the contract was sufficiently understood, and especially so when it is read in the light of the oral testimony. The judge stated to the jury that, according to Storey's testimony, the plaintiffs confirmed the contract, as soon as they heard from Stemple what it was, and the conduct of the defendants subsequently, as disclosed by the correspondence and the other testimony, supports the statement.
II. Several of the exceptions were taken to the judge's recital of the different contentions in the case, as to the evidence. If they were not correctly stated, the judge should have been requested, in due time, to make the proper amendments. This was not done. Matthews v. Myatt, 172 N. C. 230, 90 S. E. 150; State v. Merrick, 172 N. C. 870, 90 S. E. 257.
III. As to the embargo on shipments, this is no protection to the defendants, for they did not tender the lumber for shipment, and, besides, the plaintiffs proposed to get for them the necessary permits.
The other parts of the charge were clearly right, and perfectly fair to both parties. There was ample evidence to support it, and defendants have no just ground for complaint.
Plaintiffs assert that defendants refused to ship the lumber, not for the reasons they gave, that they could not get the stock from which to make it, or that its shipment had been embargoed, but because the market price of lumber was rapidly rising, and they had found another customer with a better price, and that the defendants' excuses were not frank and well-founded. While this may or may not be so, and it was denied by the defendants, we are unable to declare that there was absolutely no evidence to sustain such a theory, and therefore we cannot say that the argument was so wholly unfounded that it should not have any weight with the jury, but should have been excluded from the consideration of the case.
IV. As to damages: The sale of the lumber was made to the plaintiffs with full knowledge on the part of the defendants as to the nature of their business, in other words, that plaintiffs were buying the lumber for resale, and defendants were speciallyinformed of It, and the correspondence, and other evidence, show that plaintiffs had outstanding contracts with other parties for the purchase of the lumber at a higher price which would bring a considerable profit to the plaintiffs. It was held in Johnson v. Railroad Co., 140 N. C. 574, 577, 53 S. E. 362, that, when the action is for a breach of contract, the damages recoverable are such as naturally flow from the breach, and such special or consequential damages as are reasonably presumed to have been within the contemplation of the parties at the time they made the contract, as the probable result of a breach of it. In ascertaining what damages come within the rule, it is proper to examine, not only the terms of the contract, the subject-matter, etc., but also to inquire whether such circumstances or conditions as produced special damages were communicated to the defendant. We apprehend that the same rule prevails when an action in the nature of tort is brought for the breach of a duty arising out of contract, citing Williams v. Telegraph Co., 136 N. C. 82, 48 S. E. 559, 1 Ann. Cas. 359; Dayvis v. Telegraph Co., 139 N. C. 79, 51 S. E. 898; and Lee v. Railroad Co., 136 N. C. 533, 48 S. E. 809, where it was said: It is immaterial whether we treat the cause of action as for a breach of contract or for a negligent omission to perform a public duty arising out of a contract. The damages in either case are confined to such as were reasonably within the contemplation of the parties when the contract was made by which the duty to the plaintiffs was assumed. That for failure to deliver freight, when the carrier is not informed of the special circumstances causing the loss of the plaintiff's...
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