Wampum Cotton Mills v. Carolina & Northwestern Railway Co.

64 S.E. 586, 150 N.C. 608, 1909 N.C. LEXIS 106

• Court: Supreme Court of North Carolina
• Decided: May 5, 1909
• Status: Published

Opinions

Connor, J.,

after stating the case: Tbe evidence left the question of the status of the freight, after the first tender and refusal, in doubt. It seems that the freight was placed upon the defendant’s platform in accordance with a custom, but without any express contract with defendant. After completing the number of bales constituting a car load, the president tendered it to the agent for shipment, which was refused. , The freight remained on the platform, and the president of plaintiff company frequently, talked with the agent about shipping. There is evidence that, some thirty days after the tender, be made a second tender. In Garrison v. Railroad, ante, 575, it was conceded that defendant furnished the car upon which plaintiff loaded the lumber, and it remained on the car until shipped. There the facts were conceded. We concur with bis Honor’s instruction to the jury, that the status of the freight was uncertain. This is shown by the conduct of the parties. It was therefore a question for the jury, and was properly left to them. If the plaintiff wished to insist upon a daily tender and refusal, its president should have made it clear to defendant’s agent that be was keeping the tender good. We cannot undertake to do more than dispose of each case as it arises in regard to what constitutes a tender and refusal. When the conduct and language of the parties leaves the matter in doubt it must be submitted to the jury. His Honor correctly told the jury that they must find that there was a tender and refusal each day. Upon an examination of the entire record and the charge of the court we find

No Error.