R. R. Crawford & Co. v. Geiser Manufacturing Co.

Ashe, J. The only point presented by the record, as raised in the court below, is the exception of the defendant to His Honor’s refusal to give the instructions asked, to-wit, that the paper-writing, dated August 28, 1880, as the evidence of the contract, is so defective and uncertain that it cannot be enforced, and as the plaintiff’s demand is based thereon, the plaintiff cannot recover in this action. The instruction was properly refused. The contract is sufficiently explicit to maintain the action. Any one who reads the paper-writing would at once understand its import: that it is an agreement on the part of the defendant to furnish the articles therein described, on or before May 1st, 1881, for which the plaintiff was to pay the defendant, at date of shipment, by his draft of that date, the amount of defendant’s published prices for said articles, less by discount of 30 per cent. There is no uncertainty or ambiguity about it. The defendant understood it. There is no allegation, or even pretence in the answer that there was any such indefiniteness in the terms of the writing, as that insisted upon in the prayer for instructions and the argument of his counsel before this court. One of the defences set up by the answer was, that the paper-writing was a mere request, on the part of the plaintiff to the defendant, to furnish the machines, and was not a contract. If not a contract, why sign it? “A contract is an agreement upon sufficient consideration to do or not to do a particular thing.” *559 2 Blk., 440. The plaintiff proposed to the defendant, in writing, to pay it a certain sum if it would ship to plaintiff a certain number of machines, on or before the first of May, 1881. The defendant signed the writing, which is equivalent to saying, “I accept your proposition and will ship the articles according to your proposal.” The defendant signed the writing, which, in the answer, is called a “letter,” when it well knew it was not a letter, but was a contract, written by its secretary at its place of business in the state of Pennsylvania. It had recognized the writing as a contract, prior to the action. As late as April 28, 1881, in a letter of that- date, the defendant wrote: “We knew nothing of the transaction you speak of, until long after we sold you the machines, or rather contracted, with you for them.” The only other defence was the lame and flimsy excuse that it had made a contract with a firm in Richmond, Virginia, to sell its machines, and that a compliance with the contract with the plaintiff would interfere with that arrangement, and, therefore, it could not comply. The controlling motive in failing to perform its part of the contract was evidently the apprehension that if the machines were delivered, the plaintiff might undersell its Virginia agent; hence this unwillingness still to deliver the machines, unless the plaintiff would give the defendant a bond not to sell them for less than the factory prices — thus attempting to impose new conditions upon the plaintiff, which he thought unreasonable, and set up his refusal to accept them, as matter of defence to its liability to damages for the breach of its contract. While we hold there is no error in the judgment of the superior court in regard to the liability of the defendant upon the contract sued on, we are of the opinion there was error in the judge’s charge as to the measure of damages. The expenses of the plaintiff in sending an agent to the defendant, at Waynesboro, was not such an expense as necessarily resulted from the contract. *560 The true 'measure of damages in this case is the difference in the contract price of the machines and their market value at Salisbury, on the 1st of May, 1881, less the cost of transportation. The verdict is not to be disturbed except as to the damages, and to that end the case is remanded that an inquiry may be had as to the damages, in conformity to this opinion. The judgment will, therefore, be reformed so as to open that issue only, and in other respects it is affirmed. Burton v. R. R. Co., 84 N. C., 192; Lindley v. R. R. Co., ante, 547. Per CuriaM. Judgment accordingly.