Straus Co. v. Economys

BaeNHill, J. We may concede, without deciding, that defendant has alleged a good.cause of action. That is not the weakness of his position here. He must fail for the want of proof that the shipment was not “being loaded” on Saturday, and the truck was not “on its way from Philadelphia” on Sunday when defendant called a second time. He, it is true, says that the representations to this effect were false, but he offered no evidence in support thereof. Instead, his witness testified: “I told him what the trouble was and that the truck was on its way from Philadelphia.” “The only reason that it wasn’t delivered was simply that the transportation facilities . . . didn’t get down here until sometime later than I expected.” The truck “did not stop by my place of business but *318 came straight through Richmond to here to make delivery as quick as possible. If that hadn’t been so I would have put those sinks on that truck.” Plaintiff had no control over the shipment after it was loaded, or over the truck. Of this defendant was fully aware. He knew also that plaintiff had expressly contracted against liability for delay in delivery caused by the transportation company. Hence, under the circumstances here disclosed, the statement of plaintiff’s general manager that the shipment would arrive in Raleigh Sunday night or Monday was nothing more than the expression of the opinion that the truck in due course would reach Raleigh at that time. The defendant relied thereon at his own risk. Defendant’s cross action must rest on proof that the plaintiff knowingly or negligently misrepresented the facts as to the time of the shipment or that the delay in delivery was due to causes under its control. Since the record is devoid of any evidence to that effect, the judgment below must be Affirmed.