Straus Co Inc v. Economys

• Decision Date: 20 April 1949
• Docket Number: No. 449.,449.
• Court: North Carolina Supreme Court
• Parties: STRAUS CO, Inc. v. ECONOMYS.

52 S.E.2d 802

230 N.C. 316

STRAUS CO, Inc.

v.ECONOMYS.

No. 449.

Supreme Court of North Carolina.

April 20, 1949.

Appeal from Superior Court, Wake County; Henry A. Grady, "Emergency" Judge.

Action on account by The Straus Company, Inc., a corporation, against James N. Economys, trading as California Restaurant, for restaurant machinery and equipment sold and delivered, wherein defendant counterclaimed. From a judgment for plaintiff and dismissing counterclaim, defendant appeals.

Affirmed.

Civil action on account for restaurant machinery and equipment sold and delivered in which defendant sets up a counterclaim for damages.

Plaintiff sold to defendant certain machinery and restaurant equipment to be installed in its place of business in Raleigh, f. o. b. point of shipment, for $3,996.10. The points of shipment were Philadelphia and Richmond, and the shipments were to be made by independent contract haulers. Plaintiff was to notify defendant of the time of shipment.

On Saturday, February 2, 1946, plaintiff, in response to a telephone call, informed defendant the shipment was being loaded and would arrive in Raleigh Sunday or Monday "without fail." Thereupon, defendant got in touch with his contractor, had him report and begin the work of removing his old equipment, preparatory to installing the new on Monday, his regular closing day. The shipment did not arrive until about noon Wednesday. Two sinks were missing, due to the fact that the truck failed to stop in Richmond and "pick them up" as it was instructed to do. Plaintiff, on notice thereof, sent them by special truck and they arrived Thursday morning.

The contract of purchase and sale is in writing, was accepted by defendant September 1, 1945, and provides in part that (1) "Vendor not liable for delays beyond control", and (2) "The Straus Company, Inc., cannot guarantee delivery on any particular date by reason of frequent delays caused bytransportation companies or other causes over which it has no control."

Defendant paid all the purchase price except $671.72. This action was instituted to recover said balance. The defendant, answering the complaint filed, admitted the balance due plaintiff and pleaded a counterclaim in tort for damages proximately caused, as he alleges, by the wrongful conduct of plaintiff in falsely advising him as to the time of delivery. He alleges that the information furnished him was false, that the shipment was not actually rolling toward Raleigh February 2, as represented by plaintiff, that in fact the first truck load was actually shipped Wednesday, February 6, and the second on Thursday, February 7.

He alleges further that, relying on the information from plaintiff that the shipment was being loaded and would arrive in Raleigh Sunday night or Monday, he had all his equipment torn out and removed, that due to the delay in the arrival of the new equipment, he was compelled to close his restaurant two and one-half days, and that by reason thereof, he suffered damages in the sum of $779.63, made up of net profits...