Drake v. Spencer, 179 N.C. 683 (1920)

March 17, 1920 · Supreme Court of North Carolina

179 N.C. 683

W. B. DRAKE, Jr., Receiver of the RALEIGH MILLING COMPANY, v. B. J. SPENCER.

(Filed 17 March, 1920.)

Evidence — Instructions—Controverted Facts.

In this action to recover damages for breach of contract of sale of a lot of corn, each party alleging breach thereof by the other, there was no exception of record to evidence and Helé, the controversy was one of fact and there was no error in the charge excepted to.

Civil aotion, tried before Guión, J., at November Term, 1919, of Wake, upon these issues:

“1. Did the Raleigh Grain and Milling Company make a contract with the defendant for a lot of corn, as alleged? Answer: ‘Yes.’

“2. Was tbe Raleigb Grain and Milling Company ready, able, and willing to perform the contract on its part ? Answer: ‘Yes.’

“3. Did the defendant Spencer refuse to perform his part of the contract? Answer: ‘Yes.’

“4. What damage, if any, is the plaintiff entitled to recover of the defendant Spencer? Answer: ‘The difference between $1,184 and $1.64 per bushel, equal $775.20.’ ”

From the judgment rendered the defendant appealed.

Willis Smith and J. Crawford Biggs for plaintiff.

Ward & Grimes for defendant.

Per Curiam.

This action was brought by the plaintiff as receiver of the Raleigh Grain and Milling Company to recover damages on account of failure of the defendant to perform a contract to sell to the Raleigh Grain and Milling Company 1,700 bushels of corn, for which the milling company agreed to pay $1,184 per bushel f. o. b. Wysocking, N. C., and was to furnish the bags in which the corn was to be shipped.

No exceptions to the evidence are presented in the record, and only one exception to the charge. Upon a careful examination of the evidence and the charge, we are unable to find any error committed by the court in presenting the case to the jury. The. questions involved are matters of fact, and appear to have been clearly and fairly presented to the jury.

No error.