43 S.E. 797 | N.C. | 1903
This was an action for the recovery of balance due on sale of brick. The contract was for "two-thirds hard and one-third soft, kiln run," at $4.35 per M, f. o. b. The defense is that more than one-third were soft brick and that a large proportion of them were almost unburnt and hence worthless. There was contradictory evidence on this point. The court charged the jury that "under the contract, if the jury should find from the evidence that the term `kiln run' meant all brick between the casings, then defendant was bound to take and pay for all between the casings, including bats and soft brick. Defendant was not bound to take soft brick that had never been burned at all." Defendant excepted.
There was error. This instruction gave to the word "kiln run" a meaning that destroyed entirely the other words, "two-thirds hard and one-third soft." Construing the whole sentence, the contract was that the defendant was to take all between casings, i. e., including bats, where a brick was not broken into more than two pieces (on the evidence), but none the less the proportion was not to exceed one soft brick for two hard, and whatever the brick delivered lacked of being as valuable as if they had been in that proportion entitles the defendant to an abatement in the recovery to that extent.
New trial. *192
(273)
