HOKE, J., dissenting.
(553) The plaintiff sues to recover damages for an alleged breach of contract made by defendant to sell and deliver a cargo of salt. The contract was made by correspondence, all of which is set out in the record. The plaintiffs are copartners, conducting a mercantile business in the town of Kinston. The defendant is a corporation, doing business in the State of New York, engaged in the manufacture and sale of salt, having a branch office in the city of Savannah, Ga. Plaintiffs allege that on 11 June, 1906, the defendant contracted to sell to them 250 tons of salt for the sum of $1,817.80, and to deliver the same "at the city of New Bern, between the first day of October, 1906, and the first day of November, 1906"; that defendant failed to deliver said salt "in accordance with its contract"; that plaintiffs were ready, able and willing to receive and pay for said salt, in accordance with the terms of the contract; that by reason of the failure of defendant to deliver the salt plaintiffs sustained $500 damages. Defendant denied that it contracted to sell and deliver to plaintiff at New Bern the salt at the time alleged. It also denied that plaintiff has sustained any damage by reason of its action in the premises. Two issues were submitted to the jury:
1. "Was the contract, as alleged in the complaint, made between the parties; and, if so, was there a wrongful breach of said contract by the defendant?"
2. "What damages have the plaintiffs sustained thereby?"
Upon the conclusion of the evidence his Honor stated that he would instruct the jury to answer the first issue "No" and the second "Nothing." Plaintiffs excepted, submitted to a judgment of nonsuit and appealed.
The contract relied upon by plaintiffs is evidenced by the correspondence between the parties, and the answer to the first issue depends upon the construction of the letters. It appears (554) that defendant's salt works were located at Scranton, from which place the salt was brought through the canal to New York, and shipped from there by schooner to New Bern. There is no suggestion that it was to be shipped by rail. H. H. McKoy, one of the plaintiffs, testifies: "Dealings are in writing, by letter, . . . which was the contract." The first letter introduced from defendant, dated 14 May, 1906, addressed to plaintiffs, acknowledges receipt of a letter asking for quotations, which are enclosed "f. o. b. Schooner New Bern. . . . We could make the delivery of the salt to you sometime in October or November, at your option, though you understand that, by reason of shipment moving by water, an exact date could not be guaranteed on which it would arrive at destination." On 1 June, 1906, plaintiffs wrote defendant: "Referring to your quotations, 14 May, . . . you can enter our order for one cargo, 250 tons, to arrive at New Bern about November 1st to 10th, 1906." June 11, 1906, defendant wrote plaintiffs: "Replying to your favor, 1 June, we have, as requested, entered your order for one canal-boat load of salt, say approximately 240 to 250 net tons." It will be noted that plaintiffs allege that this letter closed the contract. There was a proposition to buy plaintiffs, and acceptance to sell by defendant. If the case is to turn upon these two letters, plaintiffs have failed to make good their allegation that the contract was to deliver the salt "between the first day of October and the first day of November, 1906." The proposition made by plaintiffs, 1 June, and accepted 11 June, 1906, was that the salt should "arrive at New Bern about November 1st to 10th, 1906." It is clear that this gave to the defendants until the last day named, 10 November, 1906, to deliver the salt.
The breach alleged is that defendant "failed to deliver said salt as it had contracted to do." It is elementary that a plaintiff may not declare upon one contract and, without amendment, recover upon another. If the rules of pleading were otherwise, a defendant (555) would never be able to prepare his defense. If upon the introduction of the letter the plaintiffs had asked permission to amend the complaint to correspond with the terms of the contract, his Honor would, as a matter of course, have allowed them to do so. As said byPearson, C. J., in Shelton v. Davis, 69 N.C. 324, "Under the Code, a plaintiff may sue for a horse and recover a cow; but in order to do this, when the variance appears, the plaintiff must obtain leave to amend by striking out `horse' and inserting `cow'." It is said in Parsley v.Nicholson, 65 N.C. 207: "Every material allegation in the complaint which is denied by the answer must be sustained in substance by
proofs." This has been uniformly held by all courts in which any degree of certainty in pleading is required. It can hardly be contended that a contract to deliver salt on 1 November, 1906, is shown by proving one to deliver on 10 November, 1906, any more than a cause of action on a note alleged to be payable on 1 November would be sustained by showing a note due 10 November. In either case the variance must be cured by an amendment.
Passing by this view of the case, we do not think that, in the light of all of the correspondence prior and subsequent to 11 June, a contract to deliver, either on 1 November, 10 November or at any other definite time, is shown. The letter of 14 May, 1906, calls attention to the fact that "an exact date could not be guaranteed on which it would arrive at New Bern." On 1 September the plaintiffs write defendant that they wish the order entered "to arrive at New Bern about 15 October." On 3 September defendant replies, from Savannah, Ga., that it had ordered shipment about 15 October, saying: "It may be necessary to ship this a little earlier, on account of conditions of freight on the canal, but the difference in time will not be enough to inconvenience you." On 5 September plaintiffs answer that they want the salt shipped (556) instead of 15 October, in time to arrive at New Bern 15 October, or as near that date as possible. On 6 September defendant writes that instructions had been sent to make shipment, "so that, if a vessel for New Bern could be readily obtained, the salt should reach there by about 15 October. You understand that it is not possible to say definitely that a shipment by schooner will arrive on any particular day, but we will come as near to the date desired by you as we can." On 5 October plaintiffs write to inquire whether the salt had been shipped: "If not shipped, please do so at once." October 8, defendant answers that the salt has not been shipped, "but we are keeping right after the works, and as soon as a schooner is secured to go to New Bern your salt will be shipped on her. You understand there are only a limited number of vessels sailing from New York to New Bern, and it is not always possible to secure one promptly, but our people are on the lookout and will ship your salt at the earliest possible moment." On 16 October plaintiffs write defendant that they hope "you have been able before now to ship our salt, as our trade is already needing and wanting it. Giving you an assortment as early as we did, we did not anticipate but that you would be able to get it to New Bern by 1 November anyway, and we sold accordingly, hoping it would be there by 15 October which was the time specified. Kindly do the very best for us, as we are needing it." On 30 October plaintiffs again write defendant, saying: "We thought that surely you would get it to New Bern by October 15
and, allowing two weeks for slow time, it would have placed it there 1 November. We sold it to our trade for delivery between 15 October and 1 November, and they are all waiting for same,
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HOKE, J., dissenting.
(553) The plaintiff sues to recover damages for an alleged breach of contract made by defendant to sell and deliver a cargo of salt. The contract was made by correspondence, all of which is set out in the record. The plaintiffs are copartners, conducting a mercantile business in the town of Kinston. The defendant is a corporation, doing business in the State of New York, engaged in the manufacture and sale of salt, having a branch office in the city of Savannah, Ga. Plaintiffs allege that on 11 June, 1906, the defendant contracted to sell to them 250 tons of salt for the sum of $1,817.80, and to deliver the same "at the city of New Bern, between the first day of October, 1906, and the first day of November, 1906"; that defendant failed to deliver said salt "in accordance with its contract"; that plaintiffs were ready, able and willing to receive and pay for said salt, in accordance with the terms of the contract; that by reason of the failure of defendant to deliver the salt plaintiffs sustained $500 damages. Defendant denied that it contracted to sell and deliver to plaintiff at New Bern the salt at the time alleged. It also denied that plaintiff has sustained any damage by reason of its action in the premises. Two issues were submitted to the jury:
1. "Was the contract, as alleged in the complaint, made between the parties; and, if so, was there a wrongful breach of said contract by the defendant?"
2. "What damages have the plaintiffs sustained thereby?"
Upon the conclusion of the evidence his Honor stated that he would instruct the jury to answer the first issue "No" and the second "Nothing." Plaintiffs excepted, submitted to a judgment of nonsuit and appealed.
The contract relied upon by plaintiffs is evidenced by the correspondence between the parties, and the answer to the first issue depends upon the construction of the letters. It appears (554) that defendant's salt works were located at Scranton, from which place the salt was brought through the canal to New York, and shipped from there by schooner to New Bern. There is no suggestion that it was to be shipped by rail. H. H. McKoy, one of the plaintiffs, testifies: "Dealings are in writing, by letter, . . . which was the contract." The first letter introduced from defendant, dated 14 May, 1906, addressed to plaintiffs, acknowledges receipt of a letter asking for quotations, which are enclosed "f. o. b. Schooner New Bern. . . . We could make the delivery of the salt to you sometime in October or November, at your option, though you understand that, by reason of shipment moving by water, an exact date could not be guaranteed on which it would arrive at destination." On 1 June, 1906, plaintiffs wrote defendant: "Referring to your quotations, 14 May, . . . you can enter our order for one cargo, 250 tons, to arrive at New Bern about November 1st to 10th, 1906." June 11, 1906, defendant wrote plaintiffs: "Replying to your favor, 1 June, we have, as requested, entered your order for one canal-boat load of salt, say approximately 240 to 250 net tons." It will be noted that plaintiffs allege that this letter closed the contract. There was a proposition to buy plaintiffs, and acceptance to sell by defendant. If the case is to turn upon these two letters, plaintiffs have failed to make good their allegation that the contract was to deliver the salt "between the first day of October and the first day of November, 1906." The proposition made by plaintiffs, 1 June, and accepted 11 June, 1906, was that the salt should "arrive at New Bern about November 1st to 10th, 1906." It is clear that this gave to the defendants until the last day named, 10 November, 1906, to deliver the salt.
The breach alleged is that defendant "failed to deliver said salt as it had contracted to do." It is elementary that a plaintiff may not declare upon one contract and, without amendment, recover upon another. If the rules of pleading were otherwise, a defendant (555) would never be able to prepare his defense. If upon the introduction of the letter the plaintiffs had asked permission to amend the complaint to correspond with the terms of the contract, his Honor would, as a matter of course, have allowed them to do so. As said byPearson, C. J., in Shelton v. Davis, 69 N.C. 324, "Under the Code, a plaintiff may sue for a horse and recover a cow; but in order to do this, when the variance appears, the plaintiff must obtain leave to amend by striking out `horse' and inserting `cow'." It is said in Parsley v.Nicholson, 65 N.C. 207: "Every material allegation in the complaint which is denied by the answer must be sustained in substance by
proofs." This has been uniformly held by all courts in which any degree of certainty in pleading is required. It can hardly be contended that a contract to deliver salt on 1 November, 1906, is shown by proving one to deliver on 10 November, 1906, any more than a cause of action on a note alleged to be payable on 1 November would be sustained by showing a note due 10 November. In either case the variance must be cured by an amendment.
Passing by this view of the case, we do not think that, in the light of all of the correspondence prior and subsequent to 11 June, a contract to deliver, either on 1 November, 10 November or at any other definite time, is shown. The letter of 14 May, 1906, calls attention to the fact that "an exact date could not be guaranteed on which it would arrive at New Bern." On 1 September the plaintiffs write defendant that they wish the order entered "to arrive at New Bern about 15 October." On 3 September defendant replies, from Savannah, Ga., that it had ordered shipment about 15 October, saying: "It may be necessary to ship this a little earlier, on account of conditions of freight on the canal, but the difference in time will not be enough to inconvenience you." On 5 September plaintiffs answer that they want the salt shipped (556) instead of 15 October, in time to arrive at New Bern 15 October, or as near that date as possible. On 6 September defendant writes that instructions had been sent to make shipment, "so that, if a vessel for New Bern could be readily obtained, the salt should reach there by about 15 October. You understand that it is not possible to say definitely that a shipment by schooner will arrive on any particular day, but we will come as near to the date desired by you as we can." On 5 October plaintiffs write to inquire whether the salt had been shipped: "If not shipped, please do so at once." October 8, defendant answers that the salt has not been shipped, "but we are keeping right after the works, and as soon as a schooner is secured to go to New Bern your salt will be shipped on her. You understand there are only a limited number of vessels sailing from New York to New Bern, and it is not always possible to secure one promptly, but our people are on the lookout and will ship your salt at the earliest possible moment." On 16 October plaintiffs write defendant that they hope "you have been able before now to ship our salt, as our trade is already needing and wanting it. Giving you an assortment as early as we did, we did not anticipate but that you would be able to get it to New Bern by 1 November anyway, and we sold accordingly, hoping it would be there by 15 October which was the time specified. Kindly do the very best for us, as we are needing it." On 30 October plaintiffs again write defendant, saying: "We thought that surely you would get it to New Bern by October 15
and, allowing two weeks for slow time, it would have placed it there 1 November. We sold it to our trade for delivery between 15 October and 1 November, and they are all waiting for same, yet at this time we haveno guarantee from you that it will be shipped before Christmas." Defendant wired 7 November to plaintiffs: "Having wired Scranton for definite information regarding your shipment. Will advise promptly as possible." On same day plaintiffs write defendant, complaining of the delay, and stating that they had sold to customers, etc. On 13 November defendant answers: "Our people have done everything (557) they could to get your salt off, and, as previously advised, the reason for the delay is that they have been unable to get schooner in which to forward salt to New Bern." There was other correspondence of very much the same character, resulting in a cancellation of the order by plaintiffs 4 December, 1906. Treating the contract as closed by the letter of 11 June, 1906, and the other letters as evidence throwing light upon the language used in the letters of 1 June and 11 June, we concur with his Honor that no contract is shown by which any definite day was fixed upon for the arrival of the salt in New Bern. Every letter by both parties recognized the fact that the salt was to be shipped by schooner from New York to New Bern, and that defendant was to ship on the first schooner which could be secured for that purpose. The liability of defendant was to ship by the first available vessel or schooner and not an unconditional promise to deliver on any definite day. If plaintiffs had alleged and shown that a vessel or schooner did in fact sail, or, by proper diligence on the part of defendant, could have been secured to carry the salt from New York to New Bern, they would have been entitled to recover such damages as they showed they sustained by such failure on the part of defendant. The defendant, in every letter, both prior and subsequent to 11 June, calls attention to the fact that the time of the shipment is dependent upon securing a vessel. On 13 November, referring to the complaint of plaintiffs that the shipment has been delayed, it writes: "It is not within our power to make any definite promise as to the date." Plaintiffs write on the same day: "Since 1 September it seems to us that you could have secured tonnage for New Bern, as it seems you have done for other people." These letters are all introduced by plaintiffs. They clearly establish a contract to ship the salt by the first schooner which could be secured sailing from New York to New Bern. The plaintiffs prefer to allege and rely upon an unconditional promise "to (558) deliver at New Bern between 1 October and 1 November, 1906," but they fail to show that any such contract was made or that any contract was made binding defendant to deliver at New Bern on any definite day. There is no allegation that a schooner or vessel sailed from New
York to New Bern between 1 October and 1 November, or that by reasonable diligence defendants could have secured one. The entire correspondence shows that, while plaintiffs "anticipated" that the salt would arrive, and acted upon such anticipation, they did not claim or suggest that there was an unconditional promise to deliver on any day. They complained of the delay, suggested negligence on the part of defendant in making the shipment, and urged that shipment be made; but defendant, in reply, repeatedly said: "You understand that it is not possible to say definitely that a shipment by schooner will arrive on any particular day," etc. To this plaintiffs made no other reply than to urge shipment. Upon a careful examination of the entire correspondence, we concur with his Honor that no such contract as that alleged in the complaint has been shown. This renders it unnecessary to consider the exception to his Honor's ruling upon the second issue. The judgment must be
Affirmed.