#### E. T. JENNETTE & CO. v. CITY HAY AND GRAIN COMPANY.

(Filed 28 February, 1912.)

1. Contracts, Written — Telegrams—Questions of Law.

A telegram and its reply expressing the agreement of the parties is a contract in writing the meaning of which is for the court to determine.

2. Same — Vendor and Vendee — Terms of Sale — Interpretation.

In reply to defendant’s letter offering corn at a certain price, without stipulation as to time of delivery, plaintiff telegraphed: ■“Letter 23. Book 400 cracked corn. Shipment thirty days, if possible. Answer immediately by wire”; to which defendant replied : “Booked cracked corn”: Held, under the contract, the defendant was obliged to sell to plaintiff cracked corn in the quantity and at the price named if ordered within thirty days, and not thereafter.

3. Contracts — Vendor and Vendee — Measure of Damages — Vendee’s Duty.

The plaintiff having purchased a number of sacks of cracked corn of the defendant, received shipments with knowledge that the sacks were not tagged as required by the Department of Agriculture and that it did not come up to the grade purchased, and sold k number of the sacks to a purchaser who kept them two weeks, when they were seized by the said department. The defendant theretofore sent the necessary tags for the sacks to *157the plaintiff, who refused to have anything further to do with the shipment, and the corn became worthless in the hands of the department: Held, it was the duty of the plaintiff to do what he reasonably could to lessen his loss, and the measure of his damages was the difference in value of the corn as it actually was and which it should have been under his contract, and such other expenses as were actually incurred by him in handling it. • 1

Appeal from Joseph S. Adams, J., at December Term, 1910, of Beaufort.

The plaintiffs, E. T. Woolard and E. J. Jennette, trading as E. T. Jennette & Go., bring this action to recover $150, alleged to be due as damages on a contract for the purchase of 400 sacks of cracked corn.

The plaintiffs contend that the contract between them and the defendant required the defendant to ship 400 sacks of corn, at a stipulated price, within thirty days from 26 March, 1909, as ordered out by them, and to ship on orders after the thirty days upon adding 2 cents per sack, which addition was called “carrying charges,” and the defendant contends that the contract was to ship 400 sacks if ordered out with thirty days.

It is admitted that 150 sacks were shipped under said contract within thirty days from its date, and that the plaintiffs •ordered out the remaining 250 sacks on 29 April, 1909, after the expiration of the thirty days, which the defendant refused to deliver, and the plaintiffs offered evidence of their damages sustained by reason of such refusal.

The 150 sacks shipped by the defendant were in threé shipments of 50 sacks each, the last shipment being about I April, 1909. All of these shipments were made upon drafts with bills of lading attached, and the plaintiffs were compelled to pay the drafts before they could receive the corn; and tags,, containing an analysis as required by chapter 149, Laws 1909, were not attached to the sacks; and the plaintiffs offered evidence thát the sacks were less in weight than was required by said statute.

One of the plaintiffs testified that the first and second shipments were defective in quality and short in weight; that when the third shipment was received they sold 45 sacks of it to Smith Paul, who carried it to his place of business from the depot, and *158after it bad been in bis possession about two weeks it was seized and condemned by tbe Department of Agriculture, on account of tbe shortage in weight and tbe defective grade; that after tbe seizure tbe plaintiffs never offered to sell it, and bad nothing more to do with it; that they replaced tbe corn takén from Paul, and tbe last time they saw tbe corn seized it was rotten and worthless.

Tbe said plaintiff also testified that tbe order for tbe 400 sacks of corn was a telegram, of date 26 March, 1909, at 9 :28 p. Mv which was as follows: “Letter 23. Book 400 cracked corn. Shipment thirty days, if possible. Answer immediately by wire”; to which tbe defendant replied, at 10:10 a. m. of 27 March, 1909 : “Booked cracked corn.”

Tbe letter of 23 March, referred to in tbe first telegram, is one from tbe defendant to tbe plaintiffs, offering corn and naming tbe price, but making no statement as to time of shipment.

On 8 April tbe plaintiffs wrote tbe defendant, complaining of tbe quality of tbe corn and tbe deficiency in weight, and on 9 April tbe defendant replied, saying, among other things: “We request that you dispose of these goods to tbe best advantage, sell it in bulk, or in any other way that you think best, and send us account of sales; and if you so desire, we will cancel tbe contract with you for tbe balance, as tbe margins we are able to get on your contract are not adequate to all of tbe trouble we are having.”

Tbe defendant sent to tbe plaintiff tbe analysis tags required by tbe statute, soon after tbe shipments began, and such tags were on tbe 45 sacks at tbe time of seizure.

On 24 April, 1909, tbe day of tbe said seizure, tbe plaintiffs 'notified tbe defendant thereof, and soon thereafter (tbe exact time not stated) tbe defendant piaid tbe Department of Agriculture tbe charges assessed by it.

His Honor charged tbe jury that tbe plaintiffs were not entitled to recover anything on account of tbe refusal to ship tbe last 250 sacks, because ordered after tbe expiration of tbe contract, and tbe plaintiffs excepted.

*159The plaintiffs reqnsted bis Honor to charge the jury as follows: “It is contended by plaintiffs that of one shipment of 50 sacks, 45 sacks were seized and condemned by the Department of Agriculture and became a total loss to the plaintiffs, and that they replaced the same with other corn which they purchased at a higher price, or $1.65 per sack; that this shipment so seized was made by defendant, bill of lading attached, and was paid for by plaintiffs before'the bill of lading was obtained and before the corn had or could have been examined in the usual course of business of this kind; that the same was taken direct from the depot to customer’s place of business and was thereafter found in defective condition and condemned; that said shipment was defective in quality and short in weight and so much below the corn contracted for in grade as to be practically valueless on this market; that defendant was notified of this condition and thereafter undertook to settle the matter with the department itself. If you find these contentions to be true from the evidence, the court charges you that the plaintiff would be entitled to recover $1.50 per sack for the corn condemned, or so much thereof as was shipped by defendant, and in addition thereto would be entitled to recover the difference between $1.50 per sack on said shipment of 50 sacks and the market price of No. 2 cracked corn at the time and place of delivery, if you find from the evidence that such price had advanced.”

This was refused, and plaintiffs excepted. There are other exceptions in the record, but they embrace the same questions covered by the two exceptions stated. There was a verdict in favor of the plaintiffs for $38.25, and from a judgment rendered thereon they appeal.

Small, McLean & McMullan for plaintiffs.

Boclman & Rodman for defendant.

AlleN, J.

The contract between the plaintiffs and the defendant is in writing, and consists of the telegram of 26 March, 1909, sent by the plaintiffs, and the reply of the defendant of 27 March, 1909, and being in writing, it was for the court to determine its meaning. We think his Honor held correctly, *160as be charged the jury that “The contract between the parties was that the defendant would sell to the plaintiff 400 sacks of No. 2 cracked corn, delivered in Washington, at $1.50 per sack, provided that the same was ordered out by the plaintiffs within thirty days, and plaintiff was not entitled to call for shipment of any part of the 400 "sacks after the thirty days had expired.”

This seems also to have been the understanding of the plaintiffs at the time this action was commenced, as they wrote the defendant on 3 May, 1909: “We are reasonable, and do not expect anything unreasonable. Now, if you will refer to the purchase of this goods, you will find that we ordered some of this shipment out at once; we could have put the entire shipment off until thirty days. It looks as this should give us consideration.”

They made no claim then that they had the right under the contract to order out any of the corn after thirty days.

This being the correct construction of the contract, there can be no recovery for refusal to ship the 250 sacks ordered by the plaintiffs after the expiration of thirty days.

Instead of the prayer requested by the plaintiffs, in reference to the 45 sacks, his Honor charged the jury: “As to the 45 sacks seized and condemned, the court charges you that after this corn was shipped -it became the property of the plaintiffs, and when it was seized and condemned in the hands of one of their customers, it was their duty .to release the same, and the measure of damages in such case was the difference in value between No. 2 cracked corn, weighing 100 pounds per sack, at the time and place of delivery, and the corn which was actually delivered, together with such reasonable costs and charges as plaintiffs incurred on account of the seizure and rehandling of the corn in question. After this corn was deliyered to the plaintiffs and seized by the State, it was the duty of the plaintiffs to do the best they could with it and to pay the cost of forfeiture and other necessary expenses incurred; but it is admitted in this ease that defendant paid the costs of the forfeiture, and the plaintiffs are therefore not entitled to recover anything on that account, but only the difference in the value between this corn and No. 2 cracked corn, as above stated, together with any other expenses actually incurred by them in its handling.”

*161In view of tbe evidence of tbe plaintiffs and tbe admitted facts, tbis instruction was as favorable to tbe plaintiffs as they were entitled to. They say tbey discovered that tbe corn being shipped by tbe defendant bad no tags on it, and was short in weight and defective in quality, before tbe shipment containing tbe 45 sacks was made, and that tbey continued to receive and sell it. Tbe defendant sent tbe analysis tags to tbe plaintiffs as soon as notified of tbe necessity for them, and wrote them on 9 April to dispose of tbe corn in any way tbey thought best. Tbe corn seized by tbe Department of Agriculture was in tbe possession of Smith Paul two weeks before tbe seizure, and be says be made no complaint about tbe corn, and tbe defendant paid tbe charges to tbe department. During tbis time tbe plaintiffs made no effort to release tbe corn from seizure, and, as tbey say, tbey bad nothing more to do with it and permitted it to remain in tbe warehouse until it became worthless.

We find

No error.