Forbes v. Drexel Knitting Mill Co.

Clarkson, J. The plaintiffs, who are in the business of selling cotton yarns, live in Richmond, Va. The defendant’s place of business is in Drexel, N. C., and the yarn, the subject of the controversy, was shipped by order of plaintiffs to defendant under the contract from Union Manufacturing Co., Union Point, G-a., to defendant at Drexel, N. C. It is not denied that under the contract plaintiff had shipped to defendant 8,122 pounds of the 40,000 pounds contracted for, in six shipments, and defendant accepted, used and paid for same, and then stopped shipments on the ground that the yarn was an inferior quality. That defendant contends it purchased a good grade under the contract, well known to the hosiery trade as sulphur blade and white mode twist, manufactured especially for and extensively used in the knitting mill trade. The defendant sets up actionable fraud in procuring the contract and alleges damages. This action is governed by the terms of the contract, which is in writing. In Colt v. Kimball, 190 N. C., at p. 172-3, Varser, J., speaking for the Court, citing a wealth of authorities, said: “Defendant’s testimony shows that he is a man of education and prominence, accustomed to the transaction of business, and of much experience, with more than an average education, who has served on the board of education for Vance County for many year's. It was his duty, unless fraudulently prevented therefrom, to read the contract, or, in case he was not able to read the fine print without stronger glasses, to have it read to him. This rule *55 does not tend to impeach, that valuable principle which commands us to treat each other as of good character, but rather enforces along with it the salutary principle that each one must ‘mind his own business’ and exercise due diligence to know what he is doing. Having executed the contract, and no fraud appearing in the procurement of the execution, the Court is without power to relieve the defendant on the ground that he thought it contained provisions which it does not. He is concluded thereby to the same extent as if he had known what due diligence would have informed him of, to wit, its plain provisions that the agent had no authority to make agreements other than those contained therein, and that such agreements, if made, were not a part of the contract.” Furst v. Merritt, 190 N. C., 397; Dunbar v. Tobacco Growers, 190 N. C., 608; Hoggard v. Brown, 192 N. C., 494; Finance Co. v. McGaskill, 192 N. C., 557. It will be noted that the language of the opinion is, “It was his duty, unless fraudulently prevented therefrom, to read the contract E. 0. Huffman testified for the defendant that he lived in Morganton, and was secretary and treasurer of the defendant company, located at Drexel. Accompanying the contract was a letter: “Confirming a telephone conversation with Mr. Huffman, and enclosed our contract number . . . for a certain quantity of yarn, sulphur black and white (mock) twist at such and such a price. That is the substance of the letter. Those figures and prices correspond with the contract that was -attached to the letter. ... I signed one copy and returned one copy.” On cross-examination: “I am frank to say that I did not read the contract. I am a college graduate and can read. ... I knew that they made this contract with me and agreed to sell this yarn to me at a certain price, and that they had another contract with the Union Mills in order to get it, and I knew that they had entered into a contract and agreed to pay for it. . . . My recollection is that we used every shipment that we took out of the depot. That one we did not take out of the depot I guess they paid the freight on it back. I think it was returned. We used the yam after we discovered the inferiority in the ya\rn, and kn&w that it was inferior when we used it. . . . No, sir, I did not notice that stipulation in there until we were sued, that we were not to use the yarn if it was inferior. . . . The contract says that this yarn that we contracted for was sulphur black and white mock twist, 15 single, the average run of the mill of the Union Manufacturing Company. I read that much of it.” It is not denied by defendant that under the contract 8,122 pounds, in six several shipments, had been made by plaintiffs to defendant, used and paid for by defendant. This action is bottomed on the contract, and the defendant is bound by its terms: “If said yarn is used all complaint shall be deemed waived.” Then again, “No inferiority in quality shall *56 constitute cause for change of terms, conditions or cancellation of any part of the contract" The contract further provides if the yarn is inferior, the seller must replace with equal quantity of the grade sold, and the yarn received shall not be used or converted and the buyer agrees to be responsible for yarn until delivered to carrier at seller’s request. The terms were violated by defendant. The defendant’s agent is a college graduate and signed the contract. The high position he occupied with defendant company indicated that he was a man of business capacity, with his “eyes wide open,” defendant’s agent signed the contract — no trick, artifice or contrivance is shown. He was not lulled into security or thrown off his guard. He' said: “I signed one copy and returned one copy.” “I am frank to say I did not read the contract.” There is no evidence of fraud in the procurement of the execution of the contract. There are certain exceptions to the general rule not applicable here. See Oil and Grease Co. v. Averett, 192 N. C., 465; Butler v. Fertilizer Works, 193 N. C., 632. It may be, from defendant’s evidence, a hard contract, but courts are called upon only to construe and not make contracts. If the contract is a hard one, it is the fault of the makers, but all are bound by the terms. “In Lea v. Johnson, 31 N. C., 19, Pearson, J., said: Hard cases are the quicksands of the law.’ In other words, a judge sometimes looks so much at the apparent hardship of the case as to overlook the law.” Leak v. Armfield, 187 N. C., at p. 628. For the reasons given, we find in the judgment below No error.