S. L. Fobes & Co. v. Branson

81 N.C. 256

• Court: Supreme Court of North Carolina
• Decided: June 5, 1879
• Status: Published

Opinion

;Smxth, C. J.

Two points only are presented in this appeal: 1. The court permitted the defendant to prove the con- Yersation which passed between him and the plaintiff’s agent at the time of the sale and the representations made by the iatter to induce the defendant to enter into the corn tract, but refused to allow him'to state whether he was influenced by these representations to purchase the goods.

2. The court was asked, and. refused, to charge the jury upon the facts testified to by the defendant, that if he could not get the goods before Christmas without paying a larger freight than that guaranteed, the plaintiff could not recover and directed the jury “ that if the defendant’s testimony was believed, and they should find that the plaintiffs’ agent guaranteed that the freight should hot exceed ten per cent” on the amount of purchase, “ and that when the defendant complained’ by letter of December 5th, plaintiffs made a reduction in the price within 90. days-from the date of the contract the plaintiff should recover.”

Upon this instruction the jury found that the plaintiffs did comply with their contract, and from the judgment thereon the defendant appeals.-

1. The first exception is untenable. The plaintiffs were answerable for the reasonable consequences of their agent’s representations, but not for their special effect upon the defendant’s own mind. All the facts were in evidence and the jury could draw their own conclusions therefrom. It was not proper to enquire into the secret motives that may have in fact operated on the defendant’s mind, not warranted by anything done or said by the agent. All the evi-dence that was admitted was competent.

2. The exceptions to the instructions asked and refused, and to those given, are also untenable.

- The plaintiffs transmitted the goods, in due time by railway and they reached the station at Raleigh on or before December 5th in strict conformity with the contract, as interpreted by the defendant, and were then subject to his disposal. He did not take possession because as he says

they were charged with a freight of $26.28, more than double the guaranteed rate of ten per cent on the purchase money. What is meant by a “guaranty” will be understood from the second letter of the defendant to the plaintiffs in which, referring to the goods, he says: “ I suppose you would do what your agent proposed, that is, put them at wholesale, enough off to pay freight” and the legal effect of which is to diminish the price by the sum paid for the freight, although in excess of the plaintiffs’.estimate. The defendant would therefore sustain no loss from this increased charge. As, however, some misunderstanding seems to have existed as to the precise terms of the contract, the defendant was not bound to accept the goods if a price beyond that agreed on was demanded, for he is not obliged to take a controversy with them., It was his duty,, however,, to act promptly,, and if he intended to refuse the goods, at once to give notice to the plaintiffs, in order that they might make other disposition of them and prevent a loss. The defendant does not do this. In his first letter to the plaintiff's, of December 5, he announces the arrival of the goods, and adds: “ Mr. McChessney, (the plaintiffs’ agent in making the sale) assured me that ten per cent on splints would certainly cover the freight, and guaranteed me the same. How about' it?”

In his second letter, written in January, in answer to qne from the plaintiffs, offering a further reduction of $10- on the price, he says: “ The goods axe still in the depot. I have not the money to take them out of the 'railroad office, and don’t know whe» I shall have. I do not want to damage you, but I am not prepared to damage, myself even to the amount of a dollar.” He does not decline taking the goods nor refuse the proposed reduction. He should have done both, and communicated his intentions promptly to the plaintiffs. In such case,, if the defendant’s reasons were legally sufficient, the goods would have been at the plain-' tiffs’ risk, and any consequent loss would fall upon them.

The conduct of the defendant, followed by an actual reduction of the price by the plaintiffs below that contended for, puts the defendant in the wrong and renders him liable. The numerous cases cited for the defendant, where it is held that if a party entering into a -special contract executes it in part and refuses to perform the residue, he cannot recover at all, have no application.

No error. . „ ■ Affirmed,