79 S.E. 450 | N.C. | 1913
This action was brought to recover damages for the breach of a contract to sell and deliver cotton. The complaint alleges that Keen Company contracted to sell to Austin-Stephenson Company 200 bales of cotton at 10 1/8 cents per pound, 100 of the bales deliverable on 20 September, 1907, and the other 100 bales on 20 October, 1907; that the contract was afterwards sold and transferred by Austin-Stephenson Company to the plaintiff, S. S. Holt, and that Keen Company failed to deliver the cotton as they had agreed to do. Plaintiff sues for the difference between the contract price and the market price on the delivery dates, which, as he alleges, is $1,500. Keen Company wrote the following letter to Austin-Stephenson Company on 1 March, 1907:
"GENTLEMEN: — This is to confirm sale to you of 200 bales of good white cotton, f. o. b. Four Oaks, N.C. 100 bales to be delivered 20 September, 1907, and 100 bales to be delivered 20 October, 1907, at 10 1/8 cents per pound."
The plaintiff also alleges the breach of another contract, made by Keen Company on 11 March, 1907, to sell and deliver 100 bales of cotton to Austin-Stephenson Company at 10 1/4 cents per pound and its assignment to him by them, the difference between the market and contract prices being $500. Keen Company wrote the following letter to Austin-Stephenson Company on 11 March, 1907:
"GENTLEMEN: — This is to confirm sale to you of 100 bales of cotton to be delivered f. o. b. Four Oaks, N.C. during the month of November, 1907, at 10 1/4 cents per pound. This cotton is to be delivered as you buy it, and not to be picked or classified."
(127) Plaintiff alleges a tender of the full price fixed by the contracts of sale and a demand for the cotton, with which defendant refused to comply. They pray judgment for $2,000. Defendant demurred because the contracts, as alleged in the complaint, are unilateral, without consideration, and void. The demurrer was overruled, and defendant excepted. They answered that they were gambling contracts and ultra vires, and were not legally sold and transferred to the plaintiff. Upon issues submitted to them, the jury found the contracts were made as alleged; that said contracts were sold and transferred to plaintiff Holt; that they were not gambling contracts; that plaintiff was ready, able, and willing to perform said contracts on his part; that defendant failed and refused to perform the same, and that plaintiff was damaged in the sum of $1,687.50, with interest. Judgment and appeal by defendant. After stating the case: We will consider the errors in the order assigned.
1. The demurrer was properly overruled. The contract, as alleged in the complaint, was not unilateral or without consideration or void. It was bilateral and bound both parties, the defendant to deliver the cotton and the plaintiff to pay the price, and for this reason also it was based upon a sufficient consideration, the mutual promises of the parties, being considerations for each other. 9 Cyc., 323. The promise to sell and deliver the cotton was founded upon the reciprocal promise to pay the price as its consideration. The contract is not void, but valid on its face.
It is argued that the plaintiff is bound by the form of the contract as contained in the letters copied into the complaint. If this be so, it does not help the defendant. The contract is still not unilateral, anudum pactum, or otherwise void on its face, but, on the contrary, is apparently valid and binding. The letters merely confirmed the sale, implying that one had already been made, and its validity was then recognized. But in the complaint distinct allegations of a binding contract are made, apart from the letters, so that in any view the (128) demurrer must fail of its purpose. Defendants cited Rankin v.Mitchem,
2. The testimony of W.H. Austin, manager of the Austin-Stephenson Company, as to his conversation with Allen K. Smith, president of the Keen Company, objected to by defendant and admitted, was harmless, if incompetent. It tended to prove only a request by Smith of Austin to notify the Keen Company if his Company ever wished to buy any cotton. It was a mere preliminary and only preparatory to negotiations. The contract itself was afterwards made by the Austin Company with the Keen Company through J. W. Keen, its secretary, treasurer, and general manager. It also was relevant, as bearing upon the issue of the lawfulness of the contract, which was raised by the defendant. It tended, even if slightly, to show that an actual delivery of the cotton was intended by the parties.
3. The objection that the court admitted the indorsement on the contract to show the transfer, is not meritorious. There was proof of the genuine execution of the same by the Austin-Stephenson Company to plaintiff. The handwriting was properly shown.
4. The charge on the first issue as to the making of the contract by the parties was correct. The court told the jury that the evidence *104 must be believed by them and produce in their minds a conviction that the contracts were made as alleged by the plaintiff, before they were authorized to answer the issue in favor of the plaintiff, and if it did not produce such a conviction, they should answer the issue "No"; if it did, their answer would be "Yes" This is sufficient, as the judge, later in the charge, distinctly placed the burden of that issue upon the plaintiff.
5. This exception is that the charge on the third issue, as to whether the contracts were founded upon a gambling consideration — a dealing in "futures" — was also sufficiently full and explicit. The burden (129) was put upon the plaintiff to establish that they were not, or the negative of the issue, in accordance with the terms of the statute, Revisal, secs. 1689, 1690, 1691. The charge, in substance and effect, was that, if the jury believed the evidence and were convinced thereby that the parties to the contracts really and in good faith contemplated an actual delivery of the cotton, and that they were not merely gambling transactions under the guise of fair and lawful dealings between them, they should answer "No"; otherwise, their answer should be "Yes, that they were gambling contracts, forbidden by law." This, while briefly expressed, was sufficient, and the jury could not well have failed to understand from it what was the law of the case. We think the instruction stated the general rule correctly. The contract by its terms, not disclosing any gambling element, the matter is to be settled by ascertaining the true underlying purpose of the parties. Was it the intention of both parties that the cotton should not be delivered, and did they conceal in the deceptive terms of a fair and lawful contract, a gambling agreement, by which they contemplated no real transaction as to the article contracted to be delivered? Edgerton v. Edgerton,
6. The defendant objected because the court instructed the jury that "if they believed the evidence" their answer to the seventh issue should be "Yes." That issue related to the corporate power of Keen Company to make contracts. The words, "if you believe the evidence," are specially assigned as error, on the ground of being a direction of the verdict; but we do not think it can be so construed. The evidence was all one way, and, besides, was practically undisputed. There was but one inference to be drawn from it, and while we have often said that another form of expression is more desirable, the resort to such words is not reversible error if it has worked no prejudice. There was no harm done in this case to the defendant by the use of these words, even if we are unable to commend them for general adoption. In Merrell v. Dudley,
Upon a consideration of the whole case, no fatal error appears.
No error.
Cited: Latham v. Field, post, 361; Davis v. R. R.,