Kerr Grain & Hay Co. v. Marion Cash Feed Co.

*656 Walker, J., after stating the ease: It appears that the defendant was unable to pay for the goods, wbieb it bad bought from the plaintiff,, and tbis was really the cause of the controversy between the parties. There is very little else of merit in the ease. If the defendant bad been solvent, and bad met its obligations with reasonable promptness there seemingly would have been no trouble and no reason for tbis litigation. 1. There was no sufficient reason shown for vacating the attachment which was issued properly upon the facts as found by the court. ¥fr are concluded by these findings. Millhiser v. Balsley, 106 N. C., 433. Tbe case of Barnhardt v. Brown, 118 N. C., 701, has no application, as it relates to the service of summons on an officer, or agent, under laws of 1889, cb. 108. Tbe facts upon wbieb the ruling of the judge was based, were those existing at the time the attachment was issued, and they were the only facts that should have been considered by him. Devries v. Summit, 86 N. C., 126. 2. Tbe exceptions, twelve in number, as to the custom requiring shipping instructions to be given within four days after demand by the shipper, has become immaterial, as the contract was changed, and a new one substituted by compromise and agreement of the parties. There is no material disagreement as to the facts. Tbe delay in forwarding the bay and beans, as the evidence clearly shows, was not an unreasonable one in view of the situation and circumstances, and besides, it clearly appears that the alleged delay in shipping the bay and beans was not the real cause of the defendant’s failure to settle with the plaintiff, but the lack of funds. Defendant bad not paid the draft attached to the bills of lading, so as to take up the latter and present them to the carrier. 3. As there was substantial difference between the parties as to the essential facts, and, as the evidence was practically one way in regard to them, it was not error to instruct the jury that, if they found the facts to be as stated in the testimony of the witnesses, they should answer the issues as indicated in the charge. Gaither v. Ferebee, 60 N. C., 303; Wetherington v. Williams, 134 N. C., 276. Tbe charge was not a peremptory one, and the verdict was not directed. Tbe credibility of the witnesses was left to the jury. 4. But we think tbe item of expense amounting to ninety dollars should be eliminated, and it is so ordered, as there is no right, in law, to make such a charge against tbe defendant. As thus modified tbe judgment is affirmed. Modified and affirmed.