{
  "id": 8691240,
  "name": "L. D. GULLEY v. BARDEN & BRO.",
  "name_abbreviation": "Gulley v. Barden & Bro.",
  "decision_date": "1878-01",
  "docket_number": "",
  "first_page": "282",
  "last_page": "285",
  "citations": [
    {
      "type": "official",
      "cite": "78 N.C. 282"
    }
  ],
  "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": 339,
    "char_count": 6474,
    "ocr_confidence": 0.438,
    "sha256": "d302ed333c2978a11c58e4d57576a2ea0e60fb2d85593c4586a9086ed36e5ab3",
    "simhash": "1:f8aa057509dcacad",
    "word_count": 1107
  },
  "last_updated": "2023-07-14T19:04:18.240606+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "L. D. GULLEY v. BARDEN & BRO."
    ],
    "opinions": [
      {
        "text": "Smith, C. J.\nOn the 28th day of July, 1873, the defendants, Barden & Bro., principals, and the others sureties, executed a bond to the plaintiff in the penal sum of $500, with the following condition :\u2014\n\u201c The condition of the above obligation is such that whereas the above bounden Barden & Bro. as aforesaid have been appointed agents by the said L. D. Gulley, to sell the Home Shuttle Sewing Machines; Now therefore if the said Barden & Bro. shall well and truly pay to the said L. D. Gulley, the wholesale price, or price to agents, for all machines and attachments sold by them as his agent, and shall return all machines and attachments that are not sold, in as good order as received, then this obligation is void and of no effect, otherwise to stand in force.\u201d\nUnder the arrangement specified in the bond, the plaintiff delivered many machines to their agents, some of which were sold, and all the proceeds accounted for, except the sum of $52 which is still .due. Others have been returned and three were tendered to the plaintiff\u2019s attorney and refused on the ground that they were damaged, and not in the plight in which they were delivered to the, agents.\nIn this action brought upon the bond, the plaintiff seeks to recover the money balance due for the machines sold, and the contract price for those which he had refused. to take back.\nOn the trial the defendants contended there was a variance between the bond produced in evidence and that de\u25a0scribed in the complaint, and also that without a previous \u2022demand the action could not be maintained.\nThe Court expressed the opinion that the plaintiff must \u2022show a demand for the machines, or that they had been tendered and refused, or were in such damaged condition that the plaintiff could not receive them, and that in the two last cases, a demand was unnecessary because useless.\nEvidence was then introduced by both parties on the question, whether there had been an offer to return, and refusal to receive the machines, and as to their damaged condition, j.ust before the a'ctioii was brought.\nAmong other things not necessary to be repeated for the purposes of this case, the Court instructed the jury as follows ; \u201c That the defendants had undertaken to deliver the machines in as good condition as when received by them\", and that it was a question for the jury to pass upon, whether the machines were in such bad condition at and before the-commencement of the suit, that they could not be delivered to the plaintiff by the defendants in the Same condition as-when received. And if the jury should find that they were-in such bad condition that they could not be delivered, in-, the language of the bond \u201c in \u25a0 as good order as received,\u201d then the plaintiff would be entitled to recover the value of the machines and fixtures.\u201d\nThe Court then proceeded to explain .the meaning and force of the words \u201c in as good order as received,\u201d and fhe , obligation imposed upon the defendants by their undertaking, and repeated the instruction that if the defendants were unable to re-deliver the machines, because of the great damage they had sustained, in as good condition as when they were received, the verdict should be rendered for the plaintiff. - 1 ' \u2022\nThe jury rendered a verdict for the plaintiff and assessed his damages at $170.\nWe think the instruction erroneous, and based upon a misconception of the obligations assumed by the defendants-The plaintiff constitutes the defendants Barden and Bro.. his agents for the sale of the sewing machines, on the ferms set out in the condition of the bond, and the bond is. executed to secure the performance of the duties growing out of that relation. The machines are deposited -with the agents for sale, and they covenant to pay the moneys due the plaintiff on such as are sold, and to return such as are :.not sold in as good order as when they were jepeiv.ed. They .are but bailees, and until a sale, the property in the goods remains in the plaintiff.\nThe ordinary duty of a bailee is to take proper care of the goods committed to his custody, and here the defendants super-add to this legal obligation and contract, unconditionally to restore the unsold machines uninjured, and make themselves absolutely responsible for any damage which may come to them while in thejr possession. This is the full extent of the covenant, to return such of the machines . as they have not been able to dispose o: \u201c in as good order as received. \u201d\nThe correlative right and duty of the plaintiff was to take -back all such as are uninjured, and to have compensation for such damages as.the others have sustained. This is the full measure of the plaintiff\u2019s rights and of the defendants\u2019 responsibilities under the promises and stipulations of their contract.\nThe measure of the plaintiff\u2019s damages in regard to the undelivered machines, is the difference in their value estimated upon the basis of the contract price, iu the condition .in which they were received by defendants, and their condition when defendants offered to return them.\nThere is error and we award a v \u00f1ire Je nov >. Let this be .-certified.\nError.\nPer Curiam. Venire de novo.",
        "type": "majority",
        "author": "Smith, C. J."
      }
    ],
    "attorneys": [
      "Messrs. Kerr \u00a3 Kerr, for plaintiff.",
      ".Messrs. Battle $ Mordecai, for defendants."
    ],
    "corrections": "",
    "head_matter": "L. D. GULLEY v. BARDEN & BRO.\nPrincipal and Agent \u2014 Const motion 'of Bond \u2014 Measure of Damages \u2014Bailment.\n1., Where the plaintiff constituted the defendants his agents for the sale of sewing-machines and took from them a bond conditioned among other .things that they should return to the plaintiff \u201call machines that are not sold, in as good order as received It ivas held, in au action by tlie plaintiff upon the bond to recover the contract price \u2022of certain machines delivered to defendants which they had offered to return in a damaged condition, but which plaintiff had declined to receive, that the measure of damages was the difference in value \u25a0estimated upon the basis of the contract price in the condition in which they were received by defendants, and their condition when defendants offered to return them.\n.3. In such case the defendants were but bailees, and until sold the property in the machines remained in the plaintiff.\n\u00abCivil ActioN upon a Bond to recover Money alleged to be due, and for damages, tried at Spring Term, 1877, of .Sampson Superior Court, before Seymour, J.\nThe facts necessary to an understanding of the opinion are set out by The Ohiee Justice. Yerdict and judgment for plaintiff. Appeal by defendants.\nMessrs. Kerr \u00a3 Kerr, for plaintiff.\n.Messrs. Battle $ Mordecai, for defendants."
  },
  "file_name": "0282-01",
  "first_page_order": 298,
  "last_page_order": 301
}