#### D. C. STRICKLAND et al. v. T. M. PERKINS & CO.

(Filed 25 September, 1907).

Principal and Agent — Vendor and Vendee — Change of Agent — Contract — Question for Jury.

When the plaintiff has bought for cash of the defendant, through his broker, certain goods for prompt delivery, of which only a part were actually delivered, and suit is brought for the balance, and the defense is, that, subsequent to the sale, the plaintiff made a separate arrangement with the broker, as his agent, for the delivery of the goods, the question raised is one of fact, and under conflicting evidence the verdict thereon will not be disturbed.

Civil ACTION, tried before Goolce, J., and a jury, at October Term, 1906, of tbe Superior Court of Era niutv County.

From judgment for tbe plaintiffs defendants excepted and appealed.

W. II. Yarborough, Jr., and T. W. Biclcett for plaintiffs.

T'F. II. Ruffin, F. S. Spruill and Armistead Jones & Son for defendants.

*93Walker, J.

Tbe only question in tbis case, it seems to us, after a most careful examination of tbe record, is substantially and essentially one of fact. Tbe learned Judge wbo presided at tbe trial presented tbe questions at issue fairly to tbe jury, giving to each party tbe full benefit of every principle of law applicable to bis contention upon tbe evidence. Let us see if tbis not true. Tbe defendants, wbo are pork packers, contracted to sell, by and tbrougb tbeir agent and broker, W. B. Green, and to deliver to tbe plaintiffs 10,000 pounds of dried salt ribs, at tbe price of $8.20 per hundred pounds, and in tbe execution of tbis contract defendants actually delivered only 4,013 pounds, at or about tbe time of tbe purchase. Tbe plaintiffs paid, at the time of tbe purchase, the full price of tbe goods, which was $820, for the entire quantity agreed to be delivered, and brought ibis suit to recover tbe price of tbe salt ribs which were not delivered and for which they bad paid. Tbe defendants allege, and there was evidence tending to show, that they delivered tbe lot of ribs of 10,000 pounds to tbeir broker, W. B. Green, and that it was thereafter agreed between him and tbe plaintiffs that tbe ribs should be delivered to them at such times and in such quantities as called for, and for tbis purpose they were stored by tbe broker in tbe warehouse. There was also evidence to tbe contrary, tbe plaintiffs contending and introducing evidence to show that tbe sale and delivery were to take effect as a completed transaction presently or at tbe time of tbe purchase, and that they never received tbe goods according to the stipulations of tbe contract, and in order to establish tbeir contention they relied partly upon tbe testimony of tbe defendants’ witnesses. Tbe Court was fair, at least to tbe defendants, in submitting tbe case to tbe jury, giving them tbe benefit of every conceivable ground upon which they could defeat tbe plaintiffs’ claim or recovery upon tbe evidence, and presenting tbe case to tbe jury in its every phase. It appears to us, upon a close scrutiny of the testimony, that even tbe *94evidence introduced by tbe defendants was sufficient to sustain tbe verdict of tbe jury, as we bave discovered some expressions wbicb fell from tbeir witnesses and wbicb give countenance to tbe plaintiffs’ theory. It is a familiar rule in an appellate court that, where there is any evidence to go to tbe jury, and no error in law appears in tbe conduct of tbe case, there is nothing to do but affirm tbe judgment below, so far as tbe application of tbe law to tbe case is concerned. We bave not been able to see any departure from tbe principles applicable to eases of this kind, although we bave diligently searched for tbe same, as counsel were earnest and zealous in arguing that error bad been committed. Tbe matter resolves itself into this: that tbe defendants bave, upon tbe evidence, and with a charge wbicb presented tbeir contention to tbe jury in tbe most favorable aspect for them, failed to convince tbe triers of tbe fact that tbeir view of tbe case was tbe correct one, and that is all.

There is no question of subsequent approval or ratification of an agent’s acts in this case, and no serious question is presented as to tbe extent or limitation of the powers of a special agent within tbe rules laid down in Brittain v. Westall, 135 N. C., 496, and 137 N. C., 34, and Biggs v. Insurance Co., 88 N. C., 143, wbicb cases were cited by tbe defendants at tbe bar. Those cases and Williams v. Whiting, 92 N. C., 691, wbicb was also relied on, bave no application, as tbe jury were against tbe defendants upon tbe bald question of fact as to whether tbe sale of tbe ribs was made directly and immediately to the plaintiffs through tbe broker, or whether, after tbe defendants bad sold them to tbe plaintiffs, there was a new agreement between tbe broker and themselves as to tbe delivery.

No good purpose would be servéd by examining tbe various objections to evidence in detail. When they are properly analyzed and considered with reference to tbe material matters at issue in tbe case and tbe main question involved, they *95will be found to be clearly without merit. And, indeed, we think they are in themselves untenable, when viewed separate and apart from the real issue.

The case was ably and ingeniously argued by the counsel for the defendants, and they presented many plausible reasons for their contentions, but when the case is stripped of all superfluous matter it will be found that there is no real ground upon which they can succeed.

We affirm the judgment of the Court below.

No Error.