Shaw Cotton Mills v. Acme Hosiery Mills

Staoy, J. There are 49 exceptions in the record, 35 of which relate to the admission and exclusion of evidence, one to the submission of the second issue to the jury, two to the court’s refusal to give special prayers for instruction, seven to his Honor’s charge, and the remaining four to the formal rendition of judgment. Several exceptions, directed to the court’s ruling upon questions of evidence, merit our attention and consideration. The defendant was permitted to offer in evidence, over the plaintiff’s objection, an invoice of yarn bought by the defendant from the Magnolia Mills at Charlotte, N. C., 25 October, 1919, showing the price paid *35 at tbat time to be $1.05. Tbis, standing alone, would be objectionable, but tbe witness bad previously testified tbat be bad paid $1.05 for yarn to supply tbe deficiency of plaintiff’s shipments. Tbe evidence was offered in corroboration. Yiewing it in tbis light, even if inadmissible, we think its effect was harmless. Mere error in tbe trial of a cause is not sufficient grounds for a new trial. It should be made to appear tbat tbe ruling was material and prejudicial to appellant’s rights. S. v. Smith, 164 N. C., 476; Schas v. Assurance Society, 170 N. C., 420; and Brewer v. Ring and Valk, 177 N. C., 476. Again, defendant was permitted to show, over plaintiff’s objection, tbe price of yam at tbe time of trial. His Honor restricted tbis to corroborating evidence — testimony having been offered tbat tbe price of yarn bad continued to rise, from time to time, since tbe execution of tbe contract. Furthermore, upon tbe measure of damages tbe court instructed tbe jury tbat they should limit their award to tbe difference between tbe agreed price and tbe market price at tbe time of tbe breach of tbe contract. Tbis apparently was sufficient to cure any objection. A mass of correspondence between tbe parties was offered in evidence, and bis Honor instructed tbe jury not to consider statements contained in tbe letters of tbe plaintiff to tbe effect tbat tbe rejected yam and other yarn bad been shipped to different customers and that no complaint bad been made by them. Plaintiff contends tbis was evidence going to show tbe yam to be of tbe character called for in tbe contract. These declarations, at most, were self-serving and tended only to prove a negative. Hence, their exclusion could not be held for reversible error. But tbis position was not insisted on at tbe time. Plaintiff accepted tbe yarn as shipped back, without objection, and credited the same on tbe defendant’s account. We have carefully examined tbe remaining exceptions, touching questions of evidence, and find them to be untenable. Tbe plaintiff objected to tbe submission of the second issue to tbe jury, and contended tbat the court should have held as a matter of law tbat tbe shipment of 11,244 pounds of yarn during tbe year 1915 was a substantial compliance with its contract. Tbe original correspondence relative to defendant’s requirements, which tbe plaintiff agreed to fill, used tbe words: “approximately 1,000 pounds monthly for tbe year 1915.” But at a subsequent date, replying to an inquiry from tbe plaintiff as to tbe amount, tbe defendant stated: “We understood we were to have 1,000 pounds of yarn per month for a term of 12 months. Please acknowledge receipt of tbis letter and state when we may expect tbe first shipment to start out.” Plaintiff answered on 17 September, 1915, as follows: “Replying'to your favor of tbe 15th, we will begin shipping again next week.” Rater, on 21 December, 1915, plaintiff wrote tbe defendant: “Some time *36 in September you raised tbe question about our delivering tbe balance o£ your order, and in order to satisfy you tbat we would live up to our end of tbe agreement we shipped you faster tban tbe contract required, and as tbe order was not for 12,000 pounds, but for your requirements during tbe year 1915, approximately 1,000 pounds monthly, and under this contract if for tbe conduct of your business you bad required. 13,000 pounds we would have furnished same, but as 11,244 pounds, as per your statement, has met your requirements, we are relieved from further shipments under this contract.” Under this correspondence, we think bis Honor properly submitted tbe second issue to tbe jury, and tbat tbe answer was justified by tbe evidence. No material benefit would be derived from considering all tbe exceptions and assignments of error in detail. A perusal of tbe charge given by tbe learned judge who presided at .the trial of this cause shows tbat tbe case was tried with care and with due regard for tbe rights of tbe parties. There was no error in bis refusal to give tbe plaintiff’s first prayer for instruction — tbe second seems to have been given — and we do not think tbe exceptions to tbe charge as given can be sustained. , Upon tbe whole record, after a careful and painstaking investigation, we find no material'or prejudicial error. Tbe controversy was largely one of fact, tried before a jury of plaintiff’s own county, and agreeable to its selection. We have found no sufficient reason for disturbing tbe verdict and judgment. No error.