Cleveland-Akron Bag Co. v. Messick Grocery Co., 171 N.C. 764 (1916)

April 19, 1916 · Supreme Court of North Carolina

171 N.C. 764

CLEVELAND-AKRON BAG COMPANY v. MESSICK GROCERY COMPANY.

(Filed 19 April, 1916.)

Vendor and Purchaser — Contracts, Written — Parol Evidence — Lost Writing— Search — Subsequent letters — Admissions.

In this action to recover the purchase price of goods sold and delivered upon -written order of the defendant, the plaintiff’s evidence of the destruction of the order by fire and its unsuccessful search therefor was sufficient to admit of parol evidence of its contents; and were it otherwise, the acknowledgment of defendant’s liability by subsequent letters was a sufficient writing.

ActxoN tried before Cline, J., and a jury, at September Term, 1915, of FORSYTH.

This is an action to recover $186.32, the purchase price of certain paper bags which the plaintiff alleges it sold to the A. E. Messick Grocery Company, the defendant in this action, to. be shipped to the Yadkin Lime Company. The principal contention of the defendant is that the bags were sold to the lime company and not to the defendant grocery company.

There was a verdict and judgment for the plaintiff, and the defendant appealed.

Eller & Siochton for plaintiff.

J. E. Alexander for defendant.

Per CuriaM.

The chief exception upon which the defendant relies is that parol evidence was admitted by the court to prove the contents of the original order for the bags.

The plaintiff offered evidence tending to prove that in the course of business orders of that date were destroyed, and that search had been made for the missing order, and it could not be found.

Tbe evidence of loss was sufficient to justify tbe reception of parol evidence; but if not, tbe defendant was not prejudiced thereby, because it appears in tbe record tbat tbe defendant wrote tbe plaintiff on 23 October, 1911, acknowledging tbe receipt of tbe bags and'saying, among other things, “These were purchased by us,” which is a sufficient acknowledgment of tbe purchase by tbe defendant, tbe grocery company, and to charge tbat company with liability.

It also appears in tbe record tbat complaint was made -as to tbe quality of tbe bags by tbe grocery company, and tbat tbe plaintiff immediately wrote to tbe defendant, asking tbat it return any bags tbat they contended were not of good quality and tbat it would give tbe defendant full credit for all bags returned. Tbe correspondence between tbe parties also shows tbat this offer on tbe part of tbe plaintiff was repeated several times, and tbat tbe defendant refused to return tbe bags.

We have carefully considered tbe whole record, and do not find any error of which tbe defendant can complain.

No error.