72 S.E. 842 | N.C. | 1911
In 1909 the defendant entered into a contract with Moseley Brothers to deliver to them 100 bales of merchantable cotton at the warehouse in Pactolus under the terms of the contract which is set out in the record. Thereafter Moseley Brothers transferred and assigned the contract to Vaughan Barnes. This action is brought by them jointly to recover damages by reason of the failure of the defendant to comply (157) with this contract.
The plaintiffs put in evidence a letter from Vaughan Barnes, dated 22 November, 1909, in which they notified the defendant that they had sold said cotton to Messrs. Hogan Co., cotton buyers and exporters, and added: "We want to know by return mail what you propose to do *126 in order that we may be able to tell the buyer here when he may expect delivery of this 100 bales of cotton in question." There was no evidence offered to show that the cotton had been resold to the plaintiffs.
The motion of the defendant for nonsuit should have been granted on the ground that "the evidence disclosed that the plaintiffs were not the owners of the claim sued on." Chapman v. McLawhorn,
They have "sawed the limb off between themselves and the tree."
Action dismissed.
Cited: S. c.,