James T. White & Co. v. McMillan

Bükwell, J.: The first and second sections of the plaintiffs’ complaint are as follows: *352 “ 1. That on or about the 17th of May, 1890, the defendant executed and delivered to plaintiffs a written contract or order (which is set out in the statement of the ease and made part of this allegation). “ 2. That by said contract or order the defendant requested plaintiffs to deliver for him, freight prepaid, at the Southern Express office in Lumberton, N. 0., one of White’s Physiological Manikins,, medical edition, in consideration of which the defendant promised to pay the plaintiffs the sum of $32 upon delivery at said express office.” The answer does not controvert these allegations. The failure to deny tírese averments is equivalent, of course, to an admission of the facts alleged. Hence it seems to us that the sum to bo paid by defendant to plaintiffs for the article named in the contract was fixed bj” the pleadings themselves, and, while it was competent for the plaintiffs to explain by parol testimony what was meant by the words and figures “Or. by Obs. Hup., $10” (Cumming v. Barber, 99 N. C., 332, and Simpson v. Pegram, 112 N. C., 541), if an explanation of them had been necessary for supporting their allegation that $32 was tlfe price agreed upon, the answer has relieved them from that necessity, if it ever existed. Plaintiffs’ evidence showed that the “manikin” was at the express office in Lumberton, the place specified in the contract as the place of delivery, on November 10,1890, consigned to defendant. The contract provided that it should bo shipped from New York “about November 1,1890.” In respect to time, therefore, the plaintiffs complied with their contract. The package was marked, it is true, “ C. O. I),” while the contract merely stipulated that tin1 defendant would pay for the article “ upon delivery,” and authorized the plaintiffs to draw for the price when due. The letter of the defendant, introduced in evidence by the *353 plaintiffs, seems to disclose the fact that he made no objections to this manner of deliver)7 and collection, but put his refusal to receive the property and pay for it solely upon the ground that “money was scarce” and that “it cost so much.” This letter, unexplained, seems to us to amount to a concession on the defendant’s part that the plaintiffs had complied with their part of the' contract, and to a positive refusal on his part to receive or pa)7 for the property. It was no longer incumbent on plaintiffs to keep it at the place of delivery agreed upon, for the defendant had notified them that he would not accept it in any event. Thereafter no course was open to the plaintiffs but to recall the property and sue for damages for breach of the contract on defendant’s part, as they have done in this action. The judgment of nonsuit must- be set aside. ’ Kitov.