State's Prison v. Hoffman & Bros. , 159 N.C. 564 ( 1912 )

Brown, J.

In this action plaintiff seeks to recover balance due on 10,475 bushels of peanuts, sold to defendants, who pleaded a breach of contract by way of counterclaim.

By consent, the judge below tried the case as judge and jury. He rendered a verdict and judgment for plaintiff.

We concur with his Honor in the judgment rendered, but think that, while reaching a correct conclusion, he gave the wrong reason for it. In no view of the evidence has there been a breach of the contract by plaintiffs. The peanuts were sold in December, 1909, to be delivered and paid for 1 January, 1910, at tbe railroad station at Tillery’s, four miles distant, or at tbe river landing a few hundred yards from plaintiff’s barn, at option of defendants. On 1 January defendants paid for 10,000 busbels and requested that tbe entire lot remain in plaintiff’s barn until called for. This was agreed to upon defendants paying tbe insurance. On 24 May, 1910, defendants requested Supervisor Ehem, at plaintiff’s farm, to deliver at once to Tillery’s Station 500 bags of peanuts. Ehem replied that be bad no authority to deliver them at Tillery’s; that defendant must phone Superintendent Laughing-house. Tbe latter bad made tbe contract. Defendants did not phone tbe superintendent, who was at tbe time on tbe farmland within reach, and request of him a delivery at Tillery’s. The' evidence shows tbe demand on Ehem was a sudden demand without notice and made at a moment when all tbe teams were engaged in plowing and when it was extremely inconvenient to make tbe delivery at a place four miles distant.

As tbe entire contents of the barn bad been sold to defendants, and nothing remained but to measure tbean, and as defendants had paid for tbe estimated contents, and accepted them, tbe title passed to defendants, 1 January, and after that tbe peas were held at their risk. Waldo v. Belcher, 33 N. C., 609. Then plaintiff became a mere accommodation bailee without hire, and required to exercise only slight care.

Tbe plaintiff had notified defendants it was prepared to deliver 1 January, according to contract. Tbe time for hauling tbe peas to tbe station or tbe boat was indefinitely postponed at defendant’s request without any consideration. ' Under such circumstances the plaintiff was entitled to reasonable notice ; it could not be compelled to stop tbe plows at a moment’s notice to commence hauling peas to a distant station. All tbe authorities agree that where delivery is at tbe option of tbe buyer, the seller is entitled to reasonable time after notice within which to make’ delivery. 35 Cyc., 182, and cases cited. What is a reasonable time is to be determined by the circumstances attending the particular transaction. In this case no prior notice whatever was given, and the seller, it seems, was expected to make immediate delivery-without it. The demand was unreasonable.

We are further of opinion that there was a waiver of delivery at Tillery’s and that the delivery on 24 May at the steamer landing was made at defendant’s voluntary request.

It is true that it is stated in the judgment that “the defendants agree that under protest they directed the delivery to the river landing.” This is not a finding of fact by the court or an admission by plaintiff. It is a mere statement of defendants, and is at variance with their own evidence. M. Hoffman in his testimony states that immediately after he returned to Til-lery from the State Farm he phoned to Rhem to deliver the peanuts at the river landing, and did not attempt to phone or wire Laughinghouse at any time, as it was plainly his duty to do, if he still desired a delivery at Tillery’s.

This is not a case of compulsion, or involuntary waiver from necessity, like the cases cited in defendant’s brief.

The judgment of the Superior Court is

'Affirmed.