White v. . Small

75 N.C. 235

• Court: Supreme Court of North Carolina
• Decided: June 5, 1876
• Status: Published

Opinion

RodmaN, J.

1. We are of opinion from the terms of the lease, that the parties had in contemplation only the seed of cotton which should be raised on the premises. The lessees were under no obligation either to gin cotton for toll or to purchase cotton and gin it on the premises for the benefit of the land. The use of the gin for the purposes passed to 'them by the lease, and they might use it in that way for their own profit if they pleased.

There is no error in the construction which his Honor put on this lease.

2. It is contended for plaintiffs that because defendants intermingled the seed of cotton raised on the premises with that of cotton bought and with that of cotton ginned on toll, the plaintiff thereby became entitled to have the whole of the seed applied as that which was raised on the land was agreed lo be. Certainly it was the duty of the defendants to have kept such accounts as would have enabled them to ascertain the quantity of seed which they had contracted to leave on the premises, as distinct from those which they were .at liberty to remove. If those which were raised on the premises had been of exceptional value by reason of the particular variety, as-is sometimes the case, it would have been their duty to have kept these particular seed separate from all others of a different variety, and any fraudulent intermixture with others would have vested the title to the whole in the plaintiffs. But no such fact appea'rs. For the purpose of manure there is no material difference in the value of the seed of any one variety of cotton over others. And although the defendants testified that they had kept no account and did not know separately how much they had ginned of cotton raised on the premises as distinct from that ginned from other sources, yet there must have been evidence from which the quantity of cotton seed raised on the premises could be ascertained, for the jury do ascer* tain it without objection for the want of evidence from which conclusion could legitimately be reached.

It could hardly be that data for that purpose, mofe or less satisfactory, could be entirely wanting. The jury would have been justified in drawing any inferences adverse to the defendants as to the quantity of seed for which they were liable, which they fairly and consistently with the evidence might do, by reason of their admitted default in not keeping an account. This they probably did, and there is no exception on that account.

Taking the whole case together, it sufficiently appears that the Judge was justified in refusing the instruction prayed for on this point, or, at least, it does not appear that he erred in refusing it.

Per Curiam. Judgment affirmed.