Bowman v. . Blankenship

Supreme Court of North Carolina

Bowman v. . Blankenship

72 S.E. 994, 157 N.C. 376, 1911 N.C. LEXIS 58

DecidedDecember 6, 1911

StatusPublished

This text of 72 S.E. 994 (Bowman v. . Blankenship) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bowman v. . Blankenship, 72 S.E. 994, 157 N.C. 376, 1911 N.C. LEXIS 58 (N.C. 1911).

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Opinion

HoKe, J.

On the argument it wa$ correctly contended by defendants’ counsel that an ordinary express contract which is definite, specific, and plain of meaning may not as a rule be changed or varied by evidence of local custom or usage. Cooper v. Purvis, 46 N. C., 142; Baseball Club v. Pickett, 78 Ind., 375; Brown v. Foster, 113 Mass., 463; Mearage v. Rosenthal, 175 Mass., 358. But in our opinion the present case does not come within the principle. The plaintiff claimed and testified that he was to saw defendants’ lumber in a manner suitable for market, and was to “edge it square so as to save loss at the mills”; that he had done the work according to contract, and the balance due was $246.77. Defendant contended and testified: “That plaintiff was to square it up. I told him we wanted the lumber cut for the shops; that defendant said he knew how to do this, said he had a good mill and a good edger and would square it up for the shops and do a, guaranteed job.” That a part of the lumber did not come up to the specifications. That the amount was not so much as claimed and the balance due was only about $60. In support of his position plaintiff introduced witnesses who testified — one, “That it was good lumber and was edged good.” Another, W. A. Holler, “That he had had twenty-two years experience in sawing; that the lumber was all right, edged all right.” Another, Thomas Moretz, “That he had had twenty years experience as sawyer, and it was cut as good as any mill commonly cuts.”

The testimony was admitted over defendant’s objection, his position being that each and every piece of the lumber was to be squared and that evidence to change this specific requirement because the lumber was good as “commonly cut,” etc., was inadmissible.

There is doubt if by defendant’s version of the contract the terms were sufficiently definite and precise as to render the testimony inadmissible, but there was dispute about the exact terms of the contract and its requirements, and plaintiff’s testimony tended to establish an agreement in terms sufficiently general *378 and indefinite as to justify reception of the evidence. We find no testimony that any of lumber was rejected at the shops because unsuitable.

The charge of the court gave defendant the full benefit of the position contended for by him; the jury, adopting plaintiff’s version of the contract and facts relevant, have rendered a verdict for the full amount claimed, and we find no1 error which gives defendant any just ground for complaint.

No error.

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HoKe, J.

On the argument it wa$ correctly contended by defendants’ counsel that an ordinary express contract which is definite, specific, and plain of meaning may not as a rule be changed or varied by evidence of local custom or usage. Cooper v. Purvis, 46 N. C., 142; Baseball Club v. Pickett, 78 Ind., 375; Brown v. Foster, 113 Mass., 463; Mearage v. Rosenthal, 175 Mass., 358. But in our opinion the present case does not come within the principle. The plaintiff claimed and testified that he was to saw defendants’ lumber in a manner suitable for market, and was to “edge it square so as to save loss at the mills”; that he had done the work according to contract, and the balance due was $246.77. Defendant contended and testified: “That plaintiff was to square it up. I told him we wanted the lumber cut for the shops; that defendant said he knew how to do this, said he had a good mill and a good edger and would square it up for the shops and do a, guaranteed job.” That a part of the lumber did not come up to the specifications. That the amount was not so much as claimed and the balance due was only about $60. In support of his position plaintiff introduced witnesses who testified — one, “That it was good lumber and was edged good.” Another, W. A. Holler, “That he had had twenty-two years experience in sawing; that the lumber was all right, edged all right.” Another, Thomas Moretz, “That he had had twenty years experience as sawyer, and it was cut as good as any mill commonly cuts.”

The testimony was admitted over defendant’s objection, his position being that each and every piece of the lumber was to be squared and that evidence to change this specific requirement because the lumber was good as “commonly cut,” etc., was inadmissible.

There is doubt if by defendant’s version of the contract the terms were sufficiently definite and precise as to render the testimony inadmissible, but there was dispute about the exact terms of the contract and its requirements, and plaintiff’s testimony tended to establish an agreement in terms sufficiently general *378 and indefinite as to justify reception of the evidence. We find no testimony that any of lumber was rejected at the shops because unsuitable.

The charge of the court gave defendant the full benefit of the position contended for by him; the jury, adopting plaintiff’s version of the contract and facts relevant, have rendered a verdict for the full amount claimed, and we find no1 error which gives defendant any just ground for complaint.

No error.

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72 S.E. 994, 157 N.C. 376, 1911 N.C. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowman-v-blankenship-nc-1911.

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