U. B. Blalock & Co v. Bros

• Decision Date: 06 December 1904
• Citation: U. B. Blalock & Co v. Bros, 49 S.E. 88, 137 N.C. 140 (N.C. 1904)
• Court: North Carolina Supreme Court
• Parties: U. B. BLALOCK & CO. v. W. D. CLARK & BROS.

49 S.E. 88

137 N.C. 140

U. B. BLALOCK & CO.

v.W. D. CLARK & BROS.

Supreme Court of North Carolina.

Dec. 6, 1904.

sales—tender of payment—method OF payment—custom—delay—question for jury—evidence.

1. In an action for nondelivery of cotton, option for sale of which plaintiff had accepted by telegram, it was competent to prove the telegram by the testimony of the operator at the sending office, who, though not the operator who sent it, testified that he brought it from the file in his office.

2. In an action for nondelivery of cotton, evidence that plaintiff had to go on the market and buy cotton at an advance by reason of defendant's failure to comply with his contract was competent.

3. The error, if any, in admitting in an action for nondelivery of cotton evidence that plaintiff had to buy cotton on the market at an advance, was harmless, when the evidence was ruled out on the issue of damages.

4. In an action for the nondelivery of cotton, it was competent for plaintiff to state that when he went to get it he was prepared to pay for it.

5. Where a contract for the sale of cotton was silent as to the mode of payment, it was competent to prove a general custom among cotton dealers as to the method of payment.had made arrangements to pay in the customary mode. Nor was it error (exception 7) to admit testimony that defendant sold the cotton to McAulay. The defendant, in his testimony, stated the same fact.

The motion to nonsuit at the close of plaintiff's evidence was waived by not renewing it at the close of all the evidence. Jones v. Warren, 134 N. C. 392, 46 S. E. 740, and cases there cited. Besides, the same point was presented and held adversely to defendant in the former appeal.

There were several prayers for special instruction. The first eight were refused, but require no discussion, for, so far as applicable to this case, they were disposed of by the former decision. Prayers 9 and 10, that, as to conditions precedent, the act of God would not excuse, the court charged, were correct propositions of law, but properly held that they had no application to this case. The eleventh prayer was "that, before the plaintiff would be entitled to recover, he must satisfy the jury by a preponderance of evidence that at the time he demanded the cotton he had then and there the money ready to pay for the cotton, " which the court gave, but added, "or was able, ready, and willing to pay for the cotton according to the custom of the community in buying and paying for cotton in large lots, of 160 bales or more, by giving valid checks for the same, or by shipping with bill of lading attached to sight draft, if the jury shall find first by a preponderance of the evidence that there was a well known and established custom in that community to...