{
  "id": 8654641,
  "name": "D. G. FISHER v. ENGLISH LUMBER COMPANY",
  "name_abbreviation": "Fisher v. English Lumber Co.",
  "decision_date": "1911-12-23",
  "docket_number": "",
  "first_page": "61",
  "last_page": "65",
  "citations": [
    {
      "type": "official",
      "cite": "158 N.C. 61"
    }
  ],
  "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": [],
  "analysis": {
    "cardinality": 348,
    "char_count": 7462,
    "ocr_confidence": 0.461,
    "sha256": "a1b0df5774ce0653183173a13d8ba5df58438d4cd7fceb114e4f46f9e0bc4b9f",
    "simhash": "1:3ce92d35bbe7fff0",
    "word_count": 1300
  },
  "last_updated": "2023-07-14T16:45:05.014249+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "D. G. FISHER v. ENGLISH LUMBER COMPANY."
    ],
    "opinions": [
      {
        "text": "Walker, J.\nThere is not much in this case but a question of fact. Plaintiff contended that he had sold the lumber to the defendant, through its officer and agent, Mac. English, and that it was an executed sale and not a mere executory contract to sell and deliver, and, further, that it had performed the contract on its part. There can be no doubt of the character of the agreement, if the'jury accepted the plaintiff\u2019s version of the contract, instead of the defendant\u2019s, which they seem to have done. The defense is that after inspecting and measuring the lumber and accepting it, through Mac. English and Hayes, the defendant, with the assistance of the plaintiff, loaded and shipped one car, and then discovered, as it alleges, that the balance of the lumber was not of the quality represented by the plaintiff. The jury passed upon this question, under the instructions of the court, and found against the defendant, so that there is nothing in the case left but the naked question as to the measure of damages.\nThe jury have found, under proper instructions and upon sufficient evidence, that plaintiff sold the lumber to the defendant, the identity of the lumber, the place of delivery, and the price being ascertained, and it appears that the only reason for the refusal was that a part of the lumber did not correspond in quality with what it was represented to be. If the jury had found this to be true, it may be that the defendant, under certain circumstances, would be entitled to a reduction of the price, or to reject the lumber. Caldwell v. Smith, 4 Dev. and Bat., 64. But there was some evidence to the effect that the defendant had the lumber inspected by English and Hayes and loaded and shipped a car-load of it. This was at least evidence of the fact that it had elected to accept the lumber, and the court having submitted the question of sale to the jury and they having found, upon all of the evidence, that there was a sale and that the quality of .the lumber was not misrepresented, we do not perceive that there was any legal impediment to the plaintiff\u2019s recovery. The prayer for instruction was properly refused, as the plaintiff is suing for the price and not for unliquidated damages. If there was a sale, he is entitled to recover the price fixed by the contract, no fraud or any other vitiating fact having been shown.\nThe objection to what occurred between the plaintiff and Mac.- English is not tenable. There was some evidence to show that he was authorized to represent the company, and, besides, the correspondence tended to show that he was recognized as defendant\u2019s agent, witb authority to make the contract for it, or, at least, that the company ratified what he did in its behalf.\n\u25a0 We find nothing in the record to indicate that plaintiff w.as not ready, willing, and able to comply with its contract.\nNo error.",
        "type": "majority",
        "author": "Walker, J."
      }
    ],
    "attorneys": [
      "Bryson \u2022& Black for plaintiff.",
      "J. Or. Merrimon for defendant."
    ],
    "corrections": "",
    "head_matter": "D. G. FISHER v. ENGLISH LUMBER COMPANY.\n(Filed 23 December, 1911.)\n1. Contracts \u2014 Vendor and Vendee \u2014 Acceptance\u2014Evidence.\nIn an action for the contract price of lumber sold and delivered by the plaintiff to the defendant, there was evidence tending to show that the defendant had accepted the lumber through its agent: Held, under the evidence in this case, with a proper charge from the court, the verdict of the jury finding for the plaintiff, and that there was an acceptance of the lumber by the defendant, without misrepresentation by the plaintiff, was without error.\n2. Contracts \u2014 Vendor and Vendee \u2014 Unliquidated Damages \u2014 Instructions.\nWhen the plaintiff is suing only upon a contract for lumber sold and delivered, the contract price, and not unliquidated damages, is to be ascertained by tbe jury, and defendant\u2019s prayer for special instruction presenting tbe latter question of damages is properly refused.\n3. Principal and Agent \u2014 Evidence\u2014Ratification.\nWhen there is evidence of agency and of a ratification of the acts of an alleged agent, evidence is competent for the purpose of binding the principal by his agent\u2019s acts, which tends to show what occurred between plaintiff and the alleged agent relating to an acceptance by the latter of goods sold and delivered to the defendant, which the defendant claimed did not come up to representation made by the plaintiff to him.\nAppeal from Cline, J., at March Term, 1911, of SwaiN.\nThis action was brought to recover the purchase price of lumber sold by the plaintiff to the defendant, and the question to be decided is whether the sale was executed or executory. The contract, as plaintiff alleged, was for the sale of oak, chestnut, and poplar lumber, except the chestnut culls, the \u201ccull lumber\u201d having been theretofore sold to Mr. Wilbar, as explained to defendant, who was to pay for the lumber $12 per thousand feet. The plaintiff also alleged that the lumber \u201cwas sold pack run, and defendant was to take it just as it came to it, except the chestnut culls, which were to be thrown out.\u201d The stock was to run from 3 to 6 feet in length and was supposed to be one face clear, but with some culls in it.\nThe defendant denied that it made the contract as set out in the complaint, and alleged a different agreement. It also denied that Mac. English, an officer of defendant company, was authorized to contract for it.\nThe plaintiff introduced letters which passed between the parties, and other evidence which tended to show that English had such authority, and stating that the company would send Mr. Hayes \u201cto take the stock up,\u201d and, after receiving a letter from the plaintiff explaining the agreement with Mac. English, the defendant sent Mac. English and Hayes to inspect the lumber, or \u201cto take it up,\u201d as expressed in the case, which we understand to mean that they were to inspect it and, if found to be according to the quantity and quality represented by plaintiff, to accept it. Plaintiff asked Mac. English if he had seen the lumber, and he said that he had seen it and \u201cit was all right.\u201d\nThe defendant afterwards did accept one car-load of the lumber, and it was shipped by it from the place of delivery, and it refused to take the other part of the lot because it was not of the quality represented.\nThe court instructed the jury as to the bearing of the evidence, and the contentions of the parties, and the issues of fact and law.\nThe defendant requested the court to charge the jury as follows :\n\u201cIf the jury should find from the evidence that there was a contract for the sale of lumber, as alleged in the complaint, and that the defendant failed and refused to comply with and perform the same, and refused to accept the lumber, then before the plaintiff could recover in this action, he must both allege and prove the damages he sustained by reason of such breaches of the contract on the part of the defendant before he would be entitled to recover judgment for any amount because of such breach.\u201d\nThe defendant excepted to some of the instructions, which will be noticed hereafter.\nThe jury returned the following verdict:\n1. Did the defendant purchase from the plaintiff the lumber described in the complaint? Answer: Yes.\n2. Did the defendant fail and refuse to take up and pay for the lumber covered by its contract with the j)laintiff ? Answer: Yes.\n3. \"What amount, if any, is the plaintiff entitled to recover from the defendant? Answer: $504, with interest from 3 December, 1909.\nJudgment was entered upon the verdict, and defendant appealed.\nBryson \u2022& Black for plaintiff.\nJ. Or. Merrimon for defendant."
  },
  "file_name": "0061-01",
  "first_page_order": 105,
  "last_page_order": 109
}