We concur with his Honor. The .plaintiff vunder the count for goods sold and delivered, ivas entitled to receiver the price.of his wagon. The order on Fries, .for the amount in goods, which was not accepted, was .certainly no payment. The doctrine of notice is taken from the law merchant, and has no application to .an .order for goods. .Such,an order is not negotiable, and does not come within the law merchant, which is strictly confined to bills for money. As the defendant himself afterwards .received from Fries the amount in his hands, ,he has :not ■.•■even a pretence -.for refusing' to pay for the wagon.
Nissen v. Tucker, 46 N.C. 176, 1 Jones 176 (1853)
Dec. 1853
·
Supreme Court of North Carolina
46 N.C. 176, 1 Jones 176
NISSEN v. TUCKER.
.An order for goods, not accepted, is no payment for property sold ; and tire owner may recover on the common count.
The doctrine of notice lias no application to an order for goods.
This ,was an 'action of assumpsit,, tried before Judge .Saunders, at .the Fall Term,. 1853, 'üf Forsyth Superior -Court.
The plaintiff sold to the defendant a wagon for thirty dollars, receiving an order on one Fries -for goods for that .amount. Fries .-declined accepting the order. The defendant afterwards had a settlement .with Fries, receiving from him the amount in -his- hand's belonging to himself. . The plaintiff declared, specially on the order, and also for, goods .sold and delivered- The jury returned a verdict for the plaintiff, subject .to. the decision of the Court, as to whether the defendant was .entitled ,to notice, the order being for .goods.
No counsel for plaintiff.
Miller, for defendant.