Savannah Sugar Refining Corp. v. Sanders

*207 ClaeKSON, J. From a careful examination of tbe entire record we do not see any difficulty in determining • that plaintiff and defendant, W. M. Sanders, came to an understanding and agreement. The circular letter from Lamborn & Co., of 7 July, 1920 — “We offer for the account of the Savannah Sugar Eefinery their standard fine granulated sugar on the basis of 22.50 less 2% for cash.” .... W. M. Sanders’ letter of 12 July: “Is your circular letter of the 7th still in force?” Lamborn & Co.’s letter of 15 July: “Circular letter of 6 July (7th) .. . . is still in force.” W. M. Sanders’ letter of 20 July: “The price was around 22^4 cents if my memory is correct, you may bill me with 50 bbls.” In Overall Co. v. Holmes, 186 N. C., p. 431, this definition of contract is given: “A contract is an ‘agreement, upon sufficient consideration, to do or not to do a particular thing.’ 2 Blackstone Com. p. 442. There is no contract unless the parties assent to the same thing in the same sense. A contract is the agreement of two minds — the coming together of two minds on a thing done or to be done. ‘A contract, express or implied, executed or executory, results from the concurrence of the minds of two or more persons, and its legal consequences are not dependent upon the impressions or understandings of one alone of the parties to it. It is not what either thinks, but what both agree,’ ” citing numerous authorities. In the briefs of defendants, great stress is laid on two propositions: (1) That the telegram of 2 August, 1920, was improperly admitted in evidence and that the telegram was the acceptance of a proposition and being a part of the contract relied on was not properly proved. As stated, we think the contract was binding on the parties from the letter of 20 July. The offer was made and accepted: “You may bill me with 50 bbls.” Plaintiff from the letter of 20 July, was bound to Sanders and the telegram of 2 August, 1920, did not affect the contract. It was immaterial and not prejudicial and this interesting contention need not now be considered. (2) Conceding that the telegram was properly admitted in evidence and it was an acceptance, plaintiff having waited some 11 days, allowing time for transmission, in this kind of commercial transaction the delay was unreasonable. Defendants in their brief say: “Thus for the period of eleven days before the date of the telegram and twenty-two days before receipt of the formal contract, the defendant, Sanders, was ‘hog-tied,’ and Lamborn and Company ‘footloose.’ ” Whatever may be the merit of defendant’s legal contention as to reasonable time, the principle does not apply here. The telegram was not a part of the contract — it was corroborative of it, both were “contract-tied.” -The contract was concluded by the letter of 20 July. It was so considered by plaintiff, who frequently wrote defendant to *208 tbat effect, and tbe denials of Sanders were negative. In fact, Sanders was careful in bis letters, it seems, not to make any positive denial. Tbe question of wbat is “reasonable time” is not germane bere. What is reasonable time in commercial matters of tbis kind is ably discussed by Varser, J., in Colt & Co. v. Kimball, ante, 169. We do not tbink tbe check sent, on wbicb'was written “For a/c and contracts in full to date,” was accord and satisfaction on tbis contract— No. 423. Tbe court below charged tbe jury, in part, as follows, on tbis aspect: “If a man be indebted to another, on account, and because of two or more separate and distinct contracts and statement is sent him by tbe other showing a balance due by him on one of tbe contracts, and nothing is said ,pr shown in tbe statement or in tbe letter accompanying it, as to and in regard to any amount due on tbe other contract, tbe sending of a check which has written in tbe face of it, Tn full of account to date,’ or similar language, for tbe amount shown to be due by tbe statement, will only be a payment of tbe amount shown to to be due by tbe statement, and its acceptance will not operate as a discharge or payment of any .amount which may be due on tbe other contract or contracts, especially if at tbe time tbe statement is sent, or check is received, tbe amount due on tbe other contract has not been fixed or determined and is not known to either of tbe parties.” Tbe court below charged further and left it to tbe jury to find whether, under all tbe facts and circumstances, Sanders intended tbe check to be in settlement not only of contract 1254, but tbe contract involved in tbis action. Tbe check sent, $774.48, was tbe exact balance of account on contract 1254. Nothing was said about contract 423. In fact, tbis contract is now being contested on tbe ground there was no “coming together of two minds.” How could Sanders intend tbat the $774.48 check was to pay a contract tbat it is contended be never made? This matter was left to tbe jury. We tbink tbe charge borne out by tbe decision of tbis Court. In Rosser v. Bynum, 168 N. C., p. 340, it is said: “It is well recognized tbat when, in case of a disputed account between parties, a check is given and received clearly purporting to be in full, or when such a check is given and from tbe facts and circumstances it clearly appears tbat it is to be received in full of all indebtedness of a given character or all indebtedness to date, tbe courts will allow to such a payment tbe effect contended for. Tbe position is very well stated in Aydlett v. Brown, 153 N. C., 334, as follows: ‘That when a creditor receives and collects a check sent by bis debtor on condition tbat it shall be in full for a disputed account, be may not thereafter repudiate tbe conditions annexed to tbe acceptance’; and is upheld and approved in numerous decision of tbe Court, Armstrong v. Lonon, 149 N. C., 435; Kerr v. *209 Sanders, 122 N. C., 635; Pruden v. R. R., 121 N. C., 511; Petit v. Woodlief, 115 N. C., 125; Koonce v. Russell, 103 N. C., 179. A proper consideration of these and other cases on the subject will disclose that such a settlement is referred to the principles of accord and satisfaction, and unless the language and the effect of it is clear and explicit it is usually a question of intent, to be determined by the jury.” Supply Co. v. Watt, 181 N. C., 432; Blanchard v. Peanut Co., 182 N. C., p. 20; DeLoache v. DeLoache, 189 N. C., 394. ~W. M. Sanders is dead and his executors have contested this matter. This was their bounden duty to do, to protect the estate. If he had lived, no doubt this litigation could have been avoided. The contract was made during, perhaps, the worst deflated period this country has known. We must abide by the written words. In May v. Menzies, 186 N. C., p. 149, it is said: “Merchants, in trading with each other, should know their rights and responsibilities. Settled law often has the effect of making people certain and careful in their dealings. Honesty in dealing with each other at home, with those of other States, and with the nations of the earth, is the golden cord to bind us together. Good faith — keeping of contracts.” From a careful review of the entire case, we can find No error.