{
  "id": 11273451,
  "name": "B. H. TYSON v. SETH H. TYSON",
  "name_abbreviation": "Tyson v. Tyson",
  "decision_date": "1885-02",
  "docket_number": "",
  "first_page": "288",
  "last_page": "291",
  "citations": [
    {
      "type": "official",
      "cite": "92 N.C. 288"
    }
  ],
  "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": 392,
    "char_count": 6841,
    "ocr_confidence": 0.415,
    "sha256": "2182c4a63d7318dd25faf9bac2300bc95063371fb98469b14316473f6417290f",
    "simhash": "1:98447cb7b5d38588",
    "word_count": 1189
  },
  "last_updated": "2023-07-14T20:45:21.083688+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "B. H. TYSON v. SETH H. TYSON."
    ],
    "opinions": [
      {
        "text": "Smith, C. J.\nThis action, begun before a justice for the recovery of the agreed price of a cotton press of the plaintiff\u2019s own manufacture, and sold by him to the defendant, was removed by the latter\u2019s appeal, to the Superior Court, where the following order of reference is entered: In this cause it is, by consent of counsel for plaintiff and defendant, ordered that the issues of law and fact be referred to G. W. Blount and A. B. Deans under the provisions of the Code of Civil Procedure, and that they report their finding to the next term of this court.\nThe defence to the action was, that by the. terms of the contract of sale, and as a condition precedent to the payment of the price, the press should be of sufficient strength to pack a bale of cotton weighing 500 pounds, if properly managed, and that it was not of such strength.\nThe referees made their report to the next term, finding the facts deduced from voluminous testimony, and among them, \u201c that the contract was conditional, as defendant alleged, and he was not to pay for the press unless it was capable of doing the stipulated work.\u201d\nThey further report that it \u201cwas of sufficient power if properly used, to pack an ordinary bale of cotton, but from the examination of the model and the evidence of experts, careful and intelligent use was essential to its proper working; that such is its construction, and such the nature of the power, when applied, that disaster must happen if proper care is not used in the application of the power and to the frame work being kept in plumb.\u201d They find as a conclusion of law that there has been no breach of condition or warranty, and that the plaintiff is entitled to judgment for the contract price of the article with interest.\nThe defendant filed numerous exceptions, most of them originating in the admission of and acting upon alleged incompetent testimony, and the insufficiency or want of it to sustain the facts deduced and reported, which and the rulings of the court in their disposition, are not presented in the case on appeal.\nAmong them, however, is one that does appear in the record, and this is to the failure of the referees to pass upon the direct inquiry \u201cwhether the press iras of sufficient power, if properly used, to pack a 500-ponnd bale of cotton according to the contract, as found by them,\u201d and to the consequent unsupported legal deduction of the defendant\u2019s liability.\nThe exception was sustained and the report recommitted to the referees, \u201cto enable them to find the fact whether or not the press was of sufficient strength to pack a 500-po,und bale of cotton, if properly managed.\u201d\nAt. a subsequent term, upon a rehearing and after argument of counsel before the referees, they report, putting the very words of the intei*rogatory .addressed to them, in an affirmative form, that the press had this capacity.\n' The defendant\u2019s counsel insisting that- the finding was an admixture of law and fact that did not respond to the inquiry, proposed to file exception thereto, and was given leave to do so. But no such exception was filed, while the record states it was acted on and overruled.\nThe defendant\u2019s appeal presents for our consideration the force and legal sufficiency of the objection to this last finding.\nThe objection to the first report was that it omits to state the precise matter of defence and the facts which enter into it, and that was, the warranted capability of the instrument, under proper management, to pack in bales of the specified weight.\nThe second reference or recommittal was to remedy this very defence, and the inquiry the referees were directed to make, was put in such specific language as to avoid all possible misconstruction as to its purpose. The defendant made no objection, and, by his silence, when, if he had any, it should have been made known, must be considered as having given his assent. The response is explicit and in exact measure with the inquiry to be made, and expressed in the same terms.\nCertainly all just cause of complaint is removed after these repeated acts of acquiescence, if any existed without them.\nBut is the finding obnoxious to the criticism passed upon it ?\nThe strength and capacity of the press to undergo the necessary strain in packing in one bale the specified weight of cotton, are facts with no admixture of legal principle.\nWliat is proper management is not less so. Tt- implies the supervision and working of the machine by persons of competent skill and experience, such as prudent owners, acting under the promptings of interest, are expected to employ in regard to their own matters. This is the instruction the judge would give as to the rule of law governing in such cases, and upon this the finding proceeds.\nBut the counsel for appellant contends that the previous finding, that \u201ccareful and intelligent use was essential,\u201d and that from its peculiar structure and mode of working, \u201cdisaster\u201d would happen in their absence, must be deemed to be embodied in the last response, and that this is beyond \u201cthe proper management\u201d mentioned in the contract.\nWe cannot perceive any substantial difference in these forms of expression, and their meaning must be the same.\nThe management must be such as the effective working of such an instrument requires. Noav this would in case of mishap or breaking, subject the plaintiff to the loss of his money.\nFor the consequences of mismanagement, inattention, and the want of the required skill in the working, the plaintiff is not, nor does his contract in any manner make him, responsible.\nThere is no error and the judgment must be affirmed.\nNo error. Affirmed.",
        "type": "majority",
        "author": "Smith, C. J."
      }
    ],
    "attorneys": [
      "Messrs. Connor & Woodard, for the plaintiff.",
      "Mr. George V. Strong, for the defendant."
    ],
    "corrections": "",
    "head_matter": "B. H. TYSON v. SETH H. TYSON.\nReference \u2014 Warranty\u2014Question of Law and Fact.\n1. Where a party excepts to the report o\u00ed a referee, because he fails to find on a particular matter as a fact, and the report is recommitted to the referee to pass on this matter, he cannot be allowed to except to the second report, because it is a mixed question of law and fact.\n3. Plaintiff brought an action for the price of a cotton press, and the defence was a breach of the warranty that it should be capable of pressing a 500-pound bale of cotton with proper management. The referee found that it was of sufficient power to press a 500-pound bale of cotton, but that careful and intelligent management were essential to its proper working; Meld, that the capacity of the press to pack a 500-pound bale is purely a question of fact, and that \u201cproper management.\u201d and \u201ccareful and intelligent management \u201d mean the same thing.\nCivil action, tried on appeal from the judgment of a Justice of the Peace, before Shepherd, Judge, at Spring Term, 1884, of Wilson Superior Court.\nJudgment was rendered for the plaintiff, and the defendant appealed.\nMessrs. Connor & Woodard, for the plaintiff.\nMr. George V. Strong, for the defendant."
  },
  "file_name": "0288-01",
  "first_page_order": 322,
  "last_page_order": 325
}