Willis v. . Construction Company , 152 N.C. 100 ( 1910 )

The sixty-three errors assigned by the defendant in the record can be fully considered under the following heads: 1. Exceptions taken to the admission of parol evidence of the agreement of the defendant to furnish cars on which plaintiff was to load the piles, and to make weekly inspections at Vanceboro of the piles loaded on the cars. 2. Exceptions taken to the admission of evidence that defendant designated the places of delivery upon plaintiff's demand, and made clear the words in the contract, "at Norfolk and Southern rail," and that plaintiff delivered the piles at places within the distance designated by defendant and so notified it. 3. Exceptions taken to the refusal of the learned trial judge to hold that the contract was an entire contract, and that, as plaintiff had not delivered the 400 piles, he could not recover. 4. Exceptions taken to the rule laid down as the proper measure of damages.

We will consider the exceptions in the order of the above grouping.

It is well and definitely settled by numerous decisions of this Court that while parol evidence is inadmissible to contradict, add to, or explain the written memorial of the agreement between two or more parties, yet such evidence is admissible "where a contract does not fall within the statute; the parties may, at their option, put their agreement in writing, or may contract orally, or put some of the terms in writing and arrange others orally. In the latter case, although that which is written cannot be aided by parol evidence, yet the terms arranged orally may be proved by parol, in which case they supplement the writing, and the whole constitutes an entire contract." Evans v. Freeman,142 N.C. 61, and cases cited; Clark on Contracts (2 Ed.), p. 85. The written memorial of the agreement between the plaintiff and defendant is silent as to which party is to procure or furnish the cars on which the piles were to be loaded and how often the inspections were to be made, and it was competent to admit parol evidence of the oral agreement between them as to these two matters. A reading of the evidence shows that the learned trial judge admitted parol evidence (104) clearly within the rule, and the exceptions of the defendant, contained in this group, cannot be sustained.

The exceptions embraced in the second group: The written agreement uses the words, "f. o. b. cars at Norfolk and Southern rail." The defendant contends that the word "rail" means established siding or station of the Norfolk and Southern Railroad Company. We cannot see that the word is capable of this interpretation, unaided by parol evidence. It would seem to mean, unaided, the iron rail of the Company's track. The word is not found in Black's Law Dictionary, nor in Words and Phrases, judicially defined, except in connection with the word "all," as "all rail," used in directions for transportation. The meaning given by the lexicographers is, "a strip of timber or mental used generally for wheels to run upon," corresponding with popular acceptation of the word. It certainly does not mean, unaided by evidence of the particular meaning intended by the agreement of the parties, an established siding or station. With this word used in the contract, as fixing the location of the delivery of the piles, capable of covering every point on the line of the Norfolk and Southern Railroad, the plaintiff requested the defendant to locate more definitely the places on the railroad at which delivery would be accepted. The defendant did so, and the plaintiff offered evidence of delivery at those places. The jury was fully instructed by his Honor upon the matters in difference on this question, and its verdict establishes the fact of delivery, by the plaintiff, at the places designated by the defendant. We overrule the exceptions of the defendant presented in this group.

Third group. Exceptions taken to the refusal of the trial judge to hold that the contract was an entire contract, and that as plaintiff had not delivered the 400 piles, he could not recover for the 260 piles delivered. In considering these exceptions, we must accept the contract as established by the verdict of the jury. The contract so established embraced other stipulations than those embraced in the writing, to wit, that the defendant was to furnish the cars and make weekly inspections. It follows therefrom that there were to be cars loaded by plaintiff each week and inspections each week, and payment of the percentage specified in the writing each week, until the complete performance of the contract by the plaintiff, when the retained percentage should be paid. The performance of the contract by the plaintiff was to be in installments, and payments to be made likewise — toties quoties. The evidence and the verdict establish the fact that plaintiff was ready, able and willing to perform his contract; that defendant failed to perform its part of the contract by failing, and refusing, when notified by plaintiff, to furnish cars on which plaintiff was to (105) load the piles; and that such failure by the defendant prevented plaintiff from performing his part of the contract. The act of the defendant was not only inconsistent with, but a violation of, the duty imposed upon it by the contract.

We do not understand the law to compel one of the parties to a contract to proceed with his performance until completed, where the other party has violated the contract by doing some act in violation of the duty imposed upon him, and indicating a purpose not to perform, and shield himself from liability by pleading the failure of the other party to entirely perform the contract. In Dula v. Cowles, 52 N.C. 290; Pearson, C. J., speaking for this Court, said: "The principle is this, where a contract is entire, and not made divisible by its terms, one of the parties cannot take advantage of his own default, either from laches or from a willful refusal to perform his part, for the purpose of putting the contract out of his way, so as to enable him to maintain assumpsit on the common counts, and thereby evade the rule; that while the special contract is in force, general assumpsit will not lie, and the contract is considered to remain in force until it is rescinded by mutual consent, or until the opposite party does some act,inconsistent with the duty imposed upon him by the contract, which amounts to an abandonment. This is as plain as we can find language in which to express the principle." In the present action, the plaintiff seeks to recover only the contract price of the 260 piles actually delivered by him, less the cost of loading on cars, found by the jury to be 25 cents per pile; he does not seek to recover any damages for the 140 piles undelivered by reason of the defendant's breach of contract. It is this demand of the plaintiff that the defendant seeks to defeat by this contention, that the contract is for the delivery of 400 piles, is an entire contract, and the 400 not being delivered, the plaintiff can recover nothing, the defendant not having used any of those delivered. The general rule, stated in Cutlerv. Powell, 2 Smith L. C., 1, quoted with approval by this Court inTussey v. Owen, 139 N.C. at p. 462, and in many of its decisions, is not applicable to the present case. The plaintiff did not willfully refuse without legal excuse, to complete the performance of his part of the contract. In commenting upon the inclination of the courts to relax the rigor of the common-law rule, allowing no recovery upon special unperformed contracts, and in construing them to be entire contracts,Smith, C. J., speaking for this Court in Chamblee v. Baker, 95 N.C. 98, said, quoting from Gorman v. Bellamy, 82 N.C. 496: "Accordingly, restrictions are imposed upon the general rule, and it is confined (106) to contracts entire and indivisible, and when by the nature of the agreement, or by express provision, nothing is to be paid till allis performed." Wooten v. Walters, 110 N.C. 251. Applying this rule of law, which has been approved in many decisions of this Court, the contract between plaintiff and defendant, as established by the verdict, is not "entire and indivisible," and there was no error in the refusal of his Honor to so instruct the jury.

The fourth group of exceptions contains the exceptions taken to the measure of plaintiff's recovery. In arriving at this, we think, the piles having no market value, it was proper for the jury to take the contract price, as they found that the piles delivered came up to the specifications, and to deduct therefrom the cost of loading. His Honor so charged the jury. It appeared in the evidence, and of this there seems to be no contradiction, that after the 260 piles were delivered and the defendant had declined to accept any of them, the land owners from whose land plaintiff had cut some of them under contracts of purchase, and who were not paid by plaintiff, and other persons who had aided plaintiff in cutting or hauling them, and who had not been paid, sold some of the piles and applied the proceeds to plaintiff's indebtedness to them on these several accounts; and this was done with the knowledge of the plaintiff. As the purchase price of the standing timber, the cutting and hauling of the piles each entered into cost, the amount received for the piles so sold and applied to plaintiff's indebtedness in performing his contract ought to be applied to reduce the amount of plaintiff's recovery. Otherwise, this would be compelling defendant to pay a second time these amounts to the plaintiff. As plaintiff received the benefit, with knowledge, of the property of defendant so sold, he ought not again to recover this sum from the defendant. Stated in different language, the plaintiff sues to recover the contract price of 260 piles, upon the theory that he had delivered these and pro tanto performed his contract; that delivery being complete, the piles became the property of defendant, and it owed the contract price. The plaintiff subsequently receives the benefit of the proceeds of the sale of some of these piles, the property of the defendant; he ought, therefore, to be required to credit such sum as a payment by defendant, and have judgment for the balance. According to the evidence, there seems to have been no market value for the piles. This view seems to have been overlooked by his Honor in his clear and exhaustive charge.

The finding of the jury to the 9th issue will be set aside and (107) new trial had only upon that issue, in order that the contract price of the piles, fixed at $1,105, be reduced by the amount received for those sold for the benefit of the plaintiff. We find no other error in the trial. The defendant will pay the costs of the appeal.

Partial new trial.