53 S.E. 132 | N.C. | 1906
Plaintiff sued for the recovery of the price of cigars sold and delivered to defendants on 10 July, 1904. Defendants admitted the sale and price and set up a counterclaim for damages for breach of contract. The evidence material to (366) the establishment and breach of the contract was in writing. On 2 September, 1901, plaintiff and defendants entered into a contract whereby plaintiff agreed to sell to defendants cigars of a certain brand at $30 per thousand in lots of 5,000. "Terms of sale cash in ten days from shipment less two per cent discount. I agree to give said W. T. exclusive contract of the "44" cigars in all territory in North Carolina lying east of the Atlantic Coast Line Railroad. Any orders received by me from that territory shall be turned over to said W. T. The said W. T. agree to advertise said cigars, I furnishing matter. This contract shall be binding so long as said W. T. push the sale of said cigars." On 28 May, 1904, plaintiff, by his attorneys, wrote defendants that by reason *271
of noncompliance with the terms of the contract on their part he "has repudiated same, and in future will only sell such cigars to you as you may order on the same terms and conditions as they will ship the same to any other persons in your territory." The breach alleged by plaintiff was the failure by defendants to make payments in ten days. On 2 June, 1904, plaintiff wrote defendants, referring to the letter of his attorneys of 28 May, saying: "And therefore, of course we will make you no more shipments under that contract. We shall be more than pleased at any time in the future to sell you any of our cigars which you may desire; however, you can no longer have absolute territory, and in the future we will sell goods to whomsoever we please in the territory formerly controlled by you. * * * If you care to handle our cigars on these terms, we shall be pleased to fill any orders which you may furnish. We will not, however, in the future give you any commissions on any goods ordered by any parties in the territory formerly controlled by you, and we reserve the right to ship and sell to whomsoever we please." After some further correspondence, plaintiff, on 6 June, 1904, declined to fill an order of defendants until defendants sent to him a telegram dictated by plaintiff, in these words: "We agree to cancellation of previous contract. Ship goods as per terms (367) of your last letter to us." Defendant Weatherly was asked, on cross-examination, whether he sent plaintiff telegram in language above quoted. The telegram was not produced nor was its absence accounted for. Defendants' objection being overruled, he answered affirmatively, to all of which defendants duly excepted. Defendant Weatherly testified that prior to 28 May, 1904, they had complied with the contract — had advertised the cigars, gave up handling other cigars. That they were wholesale dealers in groceries, cigars and tobacco — had salesmen on the road selling to their customers — furnished them with sample boxes to give away — worked this cigar almost exclusively — had built up a good trade. On a few occasions checks were not sent in ten days — heard no complaint from plaintiff. Defendants sold the cigars for $35 per thousand. Telegram was sent in reply to one from plaintiff of 9 June, 1904. Defendants introduced evidence showing sales of cigars by plaintiff's salesman within the territory east of the A. C. L. Railroad prior to 28 May, 1904. Plaintiff introduced no evidence. The court charged the jury that if they believed the evidence they should answer the second issue "Yes" and the fifth and sixth "Nothing." Defendants excepted. The jury having answered the issues as directed by the court, judgment *272
was signed for plaintiff, to which defendants duly excepted and appealed.
Defendants' first exception, pointing to the submission of the second issue, is presented upon their exception to his Honor's charge and will be considered in that connection. The second exception to the admission of defendant Weatherly's statement that he sent the telegram in reply (368) to plaintiff's of 9 June, 1904, can not be sustained. The defendants, having introduced plaintiff's telegram calling for an answer, it was clearly competent to elicit from him whether or not he answered the telegram. There is no rule of law requiring the agreement to rescind or cancel such a contract as existed between the parties to be evidenced by any writing. Certainly the defendant, having shown a notice on the part of plaintiff that he had elected to rescind could have been asked the general question whether defendants assented to the rescission. If any question had arisen in regard to the terms of the language of the telegram, it would have been necessary to produce it or to account for its absence. The testimony simply showed, by the admission of defendant Weatherly, that he sent a telegram in the language suggested by plaintiff. The exception can not be sustained. The real controversy between the parties is presented by defendants' contention. 1st. That conceding the facts to be as shown by the correspondence, there was no valid rescission of the original or substitution by new contract, for that the agreement to rescind is not supported by any valuable consideration.2d. That if there was a rescission by mutual consent, their right to recover damages sustained prior to the breach was not waived or surrendered. It is well settled that a contract may be discharged by an express agreement that it shall no longer bind either party. This is usually and correctly termed a rescission. It is equally well settled that such an agreement to operate as a discharge must be supported by a valuable consideration, which may be either a payment in money, something of value, or by a release of mutual obligations arising out of the contract. In Brown v. Lumber Co.,
In Dreifus Co. v. Salvage Co., supra, it is said: "The term cancellation of a contract implies a waiver of all rights thereunder by the parties. If, after a breach by one of the parties, they agreed to cancel it and make a new contract with reference to its subject matter, that is a waiver of any cause growing out of the original breach, and this is the rule even though the original contract was under seal." We have discussed the case upon the assumption that the plaintiff made the first breach of the contract. It is by no means clear that, upon the *275 admitted failure by defendants to pay the bills for cigars within ten days, plaintiff was not released from further performance on his part. It is often difficult to say when, in a bilateral contract such as this, stipulations are of the essence of the contract and the failure to perform them releases the other party from further performance. However this may be, there was certainly sufficient doubt to sustain the agreement to rescind or substitute a new contract. It is well settled that the release of controverted claims constitutes a valuable consideration. It may well be that defendants preferred to enter into the new contract for the purpose of securing the cigars with which to supply their trade, rather than engage in litigation of doubtful result. However this may be, they did so elect, and having procured the cigars upon their express agreement to rescind the original contract, they have no just right to complain if required to do so. If they intended reserving any (372) demand for damages, common fairness required them to say so. Upon an examination of the entire record we find no error.
The judgment must be
Affirmed.
Cited: Redding v. Vogt, post, 568.