{ "id": 8655908, "name": "BLALOCK v. CLARK", "name_abbreviation": "Blalock v. Clark", "decision_date": "1904-12-06", "docket_number": "", "first_page": "140", "last_page": "144", "citations": [ { "type": "official", "cite": "137 N.C. 140" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "50 N. C., 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276241 ], "opinion_index": 0, "case_paths": [ "/nc/50/0050-01" ] }, { "cite": "119 N. C., 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654758 ], "opinion_index": 0, "case_paths": [ "/nc/119/0257-01" ] }, { "cite": "133 N. C., 308", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "134 N. C., 392", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "33 N. C., 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276418 ], "opinion_index": 0, "case_paths": [ "/nc/33/0568-01" ] }, { "cite": "79 N. C., 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685941 ], "opinion_index": 0, "case_paths": [ "/nc/79/0129-01" ] }, { "cite": "87 N. C., 9", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683747 ], "opinion_index": 0, "case_paths": [ "/nc/87/0009-01" ] }, { "cite": "91 N. C., 396", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "112 N. C., 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651443 ], "opinion_index": 0, "case_paths": [ "/nc/112/0541-01" ] }, { "cite": "133 N. C., 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657317 ], "opinion_index": 0, "case_paths": [ "/nc/133/0306-01" ] } ], "analysis": { "cardinality": 437, "char_count": 8785, "ocr_confidence": 0.433, "pagerank": { "raw": 4.104482143572487e-07, "percentile": 0.9098283336209949 }, "sha256": "e43a69cb220c3a5c41cfa2cab9204924ae5204a0a89a587d4cbba94182d151b7", "simhash": "1:fb03a6849a0e598b", "word_count": 1614 }, "last_updated": "2023-07-14T21:21:47.205247+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BLALOCK v. CLARK." ], "opinions": [ { "text": "Clark, C. J.\nThis case was before the Court, 133 N. C., 306, where the facts are fully stated.\nThe first exception, to the admission of the telegram, is without merit. It was proven by the operator at the sending office, who', though he was not the operator who sent it, testified that he brought it from the file in his office. Besides, the defendant in his testimony admits its receipt by him. The second exception, to the evidence of plaintiff that he had to go on the market to buy other cotton, at an advance, by reason of defendant\u2019s failure to comply with bis contract, was competent. Elven if error, it was harmless, as no price was given and the Court subsequently ruled it out upon the issue as to damages, h> which alone it was applicable. Nor was it error (third exception) for plaintiff to state that when he went to get the cotton he was prepared to pay for it. The defendant could have cross-examined him upon that point. The contract being silent as to- the mode of paying for the cotton, it was competent for plaintiff to show a general commercial custom and usage among cotton dealers as to the method of paying for cotton in large lots. Simpson v. Pegram, 112 N. C., 541; Brown v. Atkinson, 91 N. C., 396 ; Norris v. Fowler, 87 N. C., 9; Bank v. Williams, 79 N. C., 129; Moore v. Eason, 33 N. C., 568. The defendant himself testified that he \u201cnever knew a large lot sold for spot cash; it is always sold for check or shipped with bill of lading attached to sight draft.\u201d The plaintiff testified that this was the well-established custom. To same purport is the testi-money of McAulay and Efird. Exceptions 4, 6, 8 and 12, addressed to the competency of such evidence, are without merit, as is exception 5 to the testimony of plaintiff that he had made arrangements to pay in the customary mode. Nor was it error (Exception 7) to admit testimony that defendant sold the cotton to McAulay. The defendant in his testimony stated the same fact.\nThe motion to nonsuit at the close of plaintiff\u2019s evidence was waived by not renewing it at the close of all the evidence (Jones v. Warren, 134 N. C., 392, and cases there cited) ; besides, the same point was presented and held adversely to defendant in the former appeal. There were several prayers for special instruction. The first eight were refused but require no discussion, for so far as applicable to this case they were disposed of by the former decision.\nPrayers 9 and 10, that as to conditions precedent the act of God would not excuse, the Court charged were correct propositions of law but properly held that they had no application to this case. The eleventh prayer was \u201cThat before tire plaintiff would be entitled to recover he must satisfy the jury by a preponderance of evidence that at the time he demanded the cotton he had then and there the money ready to pay for the cotton/\u2019 which the Court gave, but added \u201cor was able, ready and willing to pay for the cotton according to the custom of the community in buying and paying for cotton in large lots of 160 bales or more, by giving valid checks for the same or by shipping with bill of lading attached to sight draft; if the jury shall find first by a preponderance of the evidence that there was a well known and established custom in that community to pay for cotton in such lots in that way, and if the jury shall further find by a preponderance of the evidence, that there was nothing said in tire contract, or at the time of making it, about how the cotton should be paid for.\u201d The Court further charged, after stating what is necessary to make a contract, \u201cIf you answer the first issue \u2018Yes/ you will then consider tire second issue. In contracts for products like cotton time is important in compliance with the contract, hut the law gives the plaintiff a reasonable time to comply in a ease like the one on trial; but it gives him a reasonable time only, and no more, and the jury is to be the judge, from all the circumstances, as to what is a reasonable time.\u201d So far there was no exception to the modification. (\u201cIf the contract was made and the plaintiff came within a reasonable time, and was then ready and able to pay cash, or if not ready to pay cash, and if the jury find by a preponderance of the evidence that there was a well known and established custom among persohs in that section, embracing Troy, who bought and sold cotton in large lots, to pay in valid checks, or to ship with bill of lading attached to sight draft, and the plaintiff was ready to comply with this custom, and the defendant did not demand the cash, but refused to deliver the cotton because the price had advanced and because of delay, then he would be entitled to damages, if the demand for the cotton was made within a reasonable time after 8 February.\u201d) That part of the above charge which is in parentheses was excepted to by the defendant. The Cburt further charged, \u201cIf when the plaintiff went after the cotton, on 12 February it was raining, and if the jury find from a greater weight of evidence that the cotton was out in the open and had to be weighed, and that the rain was his excuse for not complying with the contract on that day, that should be considered by you in determining whether he demanded the cotton. in a reasonable time on 15 February. It is hard to give a rule as to what is a reasonable time. If a man is careless or negligent in complying, or offering to comply, said offer would not be in a reasonable time. If he goes and offers to comply as soon as a prudent man would under the circumstances it is within a reasonable time,\u201d and plaintiff excepted, but we see no prejudice accruing to defendant from the two additions above excepted to.\nThe defendant in his testimony stated: \u201cI refused to deliver cotton on the 15th because cotton had gone up and on account of plaintiff\u2019s delay.\u201d If so> there was no necessity to tender the money, and even if the custom to pay by check with bill of lading attached had not been shown it was immaterial. This was held in the former appeal, 133 N. C., 308, citing Smith v. Loan Assn., 119 N. C., 257, and Grandy v. Small, 50 N. C., 50: As to the other ground of reasonable delay, that was a matter for the jury and upon proper instructions they found the issue in favor of plaintiff. Blalock v. Clark, 133 N. C., 308.\nNo Error.", "type": "majority", "author": "Clark, C. J." } ], "attorneys": [ "B. E. Austin, B. L. Smith and Adams, Jerome & Armfield, for the plaintiff.", "Shepherd & Shepherd, B. T. Poole and J. A. Spence, for the defendant." ], "corrections": "", "head_matter": "BLALOCK v. CLARK.\n(Filed December 6, 1904).\n1. SALES \u2014 Evidence\u2014Telegraphs\u2014Options.\nIn an action for the non-delivery of cotton, an option for the sale of which plaintiff had accepted by telegram, it was competent to prove the telegram by the testimony of the operator at the sending office, who though not the operator who sent it, testified that he brought it from the file in his office.\n2. SALES \u2014 Evidence.\nIn an action for the non-delivery of cotton, evidence that the plaintiff had to go on the market and buy cotton at an advance by reason of defendant\u2019s failure to comply with his contract was competent.\n3. EVIDENCE \u2014 Sales\u2014Harmless Error \u2014 Issues.\nThe error, if any, in admitting in an action for non-delivery of cotton evidence that the plaintiff had to buy cotton on the market at an advance, was harmless^ when the evidence was ruled out on the same issue of damages.\n4. SALES \u2014 Evidence\u2014Payments.\nIn an action for the non-delivery of cotton it was competent for plaintiff to state that when he went to get it he was prepared to pay for it.\n5. SALES \u2014 Customs and Usages \u2014 Payments.\nWhere a contract for the sale of cotton was silent as to the mode of payment, it was competent to prove a general custom among cotton dealers as to the method of payment.\n6. NONSUIT \u2014 Waiver\u2014Trial.\nA motion for a nonsuit at the close of plaintiff\u2019s evidence is waived if not renewed at the close of all the evidence.\n7. SALES \u2014 Payment\u2014Usages and Customs.\nBefore the plaintiff in an action for the non-delivery of cotton can recover he must show that when he demanded it he was able to pay for it in the method fixed by the custom among cotton dealers.\n8. SALES \u2014 Questions for Jury.\nWhere a contract for the sale of cotton is silent as to time of delivery, the buyer has a reasonable time within which to demand it, and what is a reasonable time is for the jury.\n9. SALES \u2014 Tender.\nA refusal of a seller to deliver the article sold because the price has gone up, and on account of the buyer\u2019s delay, renders it unnecessary for the buyer to tender the price, to maintain an action for non-delivery.\nActioN by IT. B. Blalock & Company against W. D. Clark & Bros., beard by Judge O. U. Allen and a jury, at March Term, 1904, of the Superior Court of Stanly County. From a judgment for the plaintiff the defendant appealed.\nB. E. Austin, B. L. Smith and Adams, Jerome & Armfield, for the plaintiff.\nShepherd & Shepherd, B. T. Poole and J. A. Spence, for the defendant." }, "file_name": "0140-01", "first_page_order": 174, "last_page_order": 178 }