Mesker v. West, 192 N.C. 230 (1926)

Sept. 29, 1926 · Supreme Court of North Carolina

192 N.C. 230

GEORGE L. MESKER & COMPANY v. C. B. WEST and E. H. MENEFEE, Trading as West & Menefee.

(Filed 29 September, 1926.)

1. Contracts — Vendor and Purchaser — Delivery—Reasonable Time.

Where a contract to deliver goods does not specify the time thereof, and the seller is advised that the use by the purchaser required promptness to be binding on the purchaser, they must be delivered to the seller within a reasonable time to comply with the contract.

2. Appeal and) Error — Briefs—Assignments of Error — Objections and Exceptions. .

Assignments of error in appellant’s brief must conform to the rule of court requiring that they be based on exceptions duly noted.

Appeal by defendants from Nunn, J., at April Term, 1926, of Pitt. No error.

Action to recover purchase price of goods sold and delivered. From judgment upon verdict defendants appealed to the Supreme Court.

W. A. Darden for plaintiffs.

Blount & James for defendants.

Peb Cubiam.

On 26 June, 1922, plaintiffs accepted an order from defendants for metal, fireproof doors, to be manufactured in accordance with specifications furnished by defendants and shipped to defendants at Stantonsburg, N. C., where defendants were engaged as contractors in the erection of a school building. There had been an extended correspondence between plaintiffs and defendants, with respect to said order, tbe first letter Laving been written by defendants on 8 May, 1922. Tbe order was not given, definitely and finally, until 22 June, 1922. "While defendants stated in tbis letter tbat tbey would need tbe doors in tbe next few days, and plaintiffs, in tbeir letter accepting tbe order, replied tbat tbey hoped to receive from tbe factory, within tbe next few days, tbe shipping date of tbe goods, no definite time for tbe shipment of tbe doors was agreed upon. Tbe doors were delivered by plaintiff to a common carrier for shipment to defendants on 15 July, 1922. Tbey did not arrive at Stantonsburg until October, 1922. Defendants have filed claim with tbe railroad company for loss on account of delay in transportation.

Defendants excepted to instructions in tbe charge of tbe court tbat under tbe terms of tbe contract plaintiffs were required to ship tbe doors within a reasonable time from tbe date of tbe acceptance of tbe final order and not on any specific date; tbat if tbe jury found tbat tbe goods were delivered by plaintiffs to tbe common carrier for shipment to defendants, within such reasonable time, tbey should answer tbe issue in accordance with tbe contention of plaintiffs.

Assignment of error number two does not comply with tbe Rules of tbis Court, in tbat said assignment is not based on specific exceptions appearing in tbe case on appeal. Rule 19(3). Defendants assign as error “tbat tbe court repeatedly instructed tbe jury tbat tbe plaintiffs were only required to make delivery of tbe doors within a reasonable time after receipt of tbe order, notwithstanding tbat there was. a specific time within which plaintiffs agreed to make delivery, and time was of tbe essence of tbe contract.” "We fail to find in tbe contract, as contained in tbe letters, any agreement on tbe part of plaintiffs to ship tbe doors within a specific time. Leak v. Covington, 99 N. C., 559. We have, however, examined exceptions upon which tbe assignment of error is apparently based. Tbey cannot be sustained. There is

No error.