{
  "id": 8683742,
  "name": "DOCTOR COLE vs. WILLIAM HESTER",
  "name_abbreviation": "Cole v. Hester",
  "decision_date": "1848-12",
  "docket_number": "",
  "first_page": "23",
  "last_page": "27",
  "citations": [
    {
      "type": "nominative",
      "cite": "9 Ired. 23"
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    {
      "type": "official",
      "cite": "31 N.C. 23"
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  "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": "2 Dev. & Bat. 544",
      "category": "reporters:state",
      "reporter": "Dev. & Bat.",
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        11276589
      ],
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        "/nc/19/0544-01"
      ]
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    {
      "cite": "2 Dev. & Bat. 544",
      "category": "reporters:state",
      "reporter": "Dev. & Bat.",
      "case_ids": [
        11276589
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      "case_paths": [
        "/nc/19/0544-01"
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  "last_updated": "2023-07-14T20:18:40.677102+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "DOCTOR COLE vs. WILLIAM HESTER."
    ],
    "opinions": [
      {
        "text": "Pearson, J.\nThe first proposition laid down by his Honor, is too general, and ought to have been qualified.\nIf the contract was unconditional, and the defendant had failed to deliver the tobacco, the plaintiff was entitled to recover, provided, he was ready and able to pay the price. The delivery of the tobacco and the payment of the price, were concurrent acts; and, to entitle the plaintiff to recover, it was necessary for him to aver or prove that he was ready to perform his part of the contract. The plaintiff, however, cannot complain of this error as it was in his favor.\nThe second proposition, \u201cif the contract was, that the delivery of the tobacco depended on the plaintiff\u2019s getting Kennedy\u2019s tobacco, prizing it and sending it off, and plaintiff had not procured said tobacco, the defendant would be entitled to a verdict,\u201d is certainly true. There was some evidence tending to shew that the contract depended upon the plaintiff\u2019s getting Kennedy\u2019s tobacco, but the evidence was slight, and we cannot help thinkingj that if particular instruction had been asked for, and the attention of the jury had been directed to the distinction between what circumstances enter into and form a part of a contract, so that the contract may be said to depend on them, and what are merely collateral, the jury would have arrived at the conclusion, that the contract in this case did not depend upon the plaintiff\u2019s getting Kennedy\u2019s tobacco, so as to make that a condition precedent. If A. agrees to buy the tobacco of B. provided he can borrow five hundred dollars from C. the agreement is conditional; it depends upon A\u2019s being able to brrow the money from C. But if A. agrees to buy the tobacco of B., and, by way of assuring B. that he will be able to pay for it, A. tells B. that he expects to borrow money from C., this is a mere collateral circumstance \u2014 the contract does not depend on it. It makes no difference how A. gets the money; it is sufficient if he has it ready.\nThis point does not seem to have been made at the trial, and is not presented by the case as made up; for which reason, the plaintiff cannot have the benefit of it.\nThe third proposition, \u201cif the contract was made with the defendant, as the agent of his mother, the plaintiff could not recover, even for one sixth of the crop,\u201d is unobjectionable. The mother owned the whole crop, the defendant was not a tenant in common \u00bfs to one sixth, he had no property in it or lien upon it \u2014 State v. Jones, 2 Dev. & Bat. 544\u2014and might well sell the whole as her agent, and look to her for his sixth part of the price.\nPer Curiam. Judgment affirmed.",
        "type": "majority",
        "author": "Pearson, J."
      }
    ],
    "attorneys": [
      "Busbee, McRae and Miller, for the plaintiff.",
      "Gilliam and W. H. Haywood, for the defendant."
    ],
    "corrections": "",
    "head_matter": "DOCTOR COLE vs. WILLIAM HESTER.\nWhen the contract is for the delivery of a certain quantity of Tobacco, deliverable at a certain place and for a certain price, iu order to entitle the purchaser to recover for a breach of the contract, he must allege and prove that he was ready to perform his part of the contract.\nWhere it appeared that A. raised the Tobacco on his mother\u2019s land, and was to have one sixth for his labor, &c.; Held, that A. was not a tenant in common with his mother, as to one sixth, and had no property in it or lien on it.\nThe case of State v. Jones, 2 Dev. & Bat. 544, cited and approved.\nAppeal from the Superior Court of Law of Franklin County, at the Spring Term, 1848, his Honor Judge Caldwell presiding.\nThis is an action of assumpsit to recover damages for the breach of a contract, because of the non-delivery of a crop of tobacco, alleged to have been sold by the defendant to the plaintiff in the winter of 1845.\nSeveral witnesses testified that they heard the defendant say, he had sold his crop of tobacco to the plaintiff for four dollars per hundred, to be delivered at the Frank-linton depot. A witness, introduced by the plaintiff, testified that he went with him to the plantation of one Mrs. Hester, the mother of the defendant, and where he lived as an overseer, to see him in relation to the tobacco, about the 1st of April, 1845 ; that the defendant was prizing it; that the plaintiff said, \u201c are you going to let me have your Tobacco 1\u201d that the defendant replied, \u201c our contract was, that you were to get Kennedy\u2019s Tobacco. and by the sale of it, get money to pay me, and as you failed to get it, I concluded to prize mine, and I shall go on with itthat the. plaintiff rejoined, that made no difference, for he could pay the money without getting Kennedy\u2019s tobacco ; that the plaintiff then offered defendant twenty cents per hundred for the prizing he had done \u2014 to which the defendant did not assent.\nAnother witness, on the part of the plaintiff, testified, that, in March, 1845, the defendant came to the plaintiff\u2019s factory at Franklinton \u2014 that witness said : \u201cWhat! are you come to get off too V\u2019 the defendant said, \u201cno, I have come to get tighter on that the plaintiff and defendant had a conversation to one side, and hr heard the plaintiff say to defendant, \u201cas soon as I get Kennedy\u2019s tobacco, prize it and send it off; I will be ready to take yours.\u201d Several witnesses testified that tobacco had risen in price between the winter and 1st of April, 1845, and all proved that the defendant lived with his mother as an overseer and was to have the one sixth of the crop for his wages, and that he raised no other crop; also, that he had been acting as his mother\u2019s agent and selling her crops for some two years, and that this was generally known in and about Franklinton. It also appeared, that, in the Winter and Spring of 1845, the plaintiff was reported to be in failing circumstances.\nThere was no evidence that the plaintiff had got Kennedy\u2019s tobacco or any part of it.\nThe defendant insisted that bis obligation to deliver-the tobacco depended on a contingency, that had not happened, namely: the failure on the part of the plaintiff to get Kennedy\u2019s tobacco ; and he was therefore not liable on this part of the case. And further, that the contract was made by him as the known agent of his mother, and the suit ought to have been brought against her. The plaintiff, on the contrary, insisted that the contract did not depend on any condition or contingency, that it made no difference if the plaintiff were able to pay when the tobacco was delivered. And, on the other ground, the plaintiff insisted that the contract was an individual one with the defendant; but, even if it were otherwise, he was entitled to recover for the non-delivery of one sixth of the tobacco, though there was no evidence that the crop had been divided and the defendant\u2019s portion set apart to him. The Court charged that if it were the contract between parties, that the defendant must deliver the tobacco at Franklinton depot apart from any condition or contingency, it was the duty of the defendant to tender it there within a reasonable time ; and if he failed to do so, the plaintiff would be entitled to damages, the measure of which would be the difference between the contract price and the rise in the price, if any had taken place, and if no rise had taken place, plaintiff would be entitled to recover at least nominal damages- On the other point, the Court charged, if the contract were that the delivery depended on the plaintiff\u2019s getting Kennedy\u2019s tobacco, prizing it and selling it off, and the plaintiff had not procured said tobacco, the defendant would be entitled to their verdict. And the Court also charged, that if the contract were made with the defendant as the agent of his mother, that the plaintiff could not recover, even for the one sixth of the crop. The jury returned a verdict for the defendant.\nA new trial was moved for and refused, and the plaintiff appealed.\nBusbee, McRae and Miller, for the plaintiff.\nGilliam and W. H. Haywood, for the defendant."
  },
  "file_name": "0023-01",
  "first_page_order": 31,
  "last_page_order": 35
}