Opinion
(June Term, 1841.)
1. A party cannot recover on an implied agreement for the price of goods sold and delivered, if he could have maintained an action on a special contract relating to that price.
2. But where the special contract is imperfect, as where the price was to be the market value on a certain day and at a certain place to be fixed by the seller, and he fails to select in proper time the day and place, he may yet maintain an action for the value of the goods delivered, and declare in indebitatus assumpsit on a quantum valebat.
3. But regard must be had to the special agreement so far that the plaintiff cannot recover a higher price for his goods than he could have done if he had literally or duly observed the terms of the special contract.
(449) ASSUMPSIT, tried at Spring Term, 1841, before Manly, J. Verdict and judgment for the plaintiff, under the charge of the court, and defendant appealed to the Supreme Court. The facts are set forth in the opinion of the Court.
D. F. Caldwell for defendant.
Boyden for plaintiff.
This is an action of assumpsit, brought in December, 1837, to recover the price of a crop of cotton sold by the plaintiff to the defendant. It arises out of the transaction stated in McNeely v. Carter, ante, 141, between the same parties reversed. The facts there stated are agreed on in this case, with the addition of the following circumstances: The plaintiff delivered to the defendant, under the written contract, his crop in parcels, as follows:
1837. 25 January ................................... lb. 5460 14 and 15 April............................... 4504 1/4 26 April ..................................... 2922 1/2
The declaration contained two counts: the one, on the special (450) agreement and claiming the value at Camden, on 31 January, 1837, and the other, in indebitatus assumpsit on a quantum valebat.
Upon the trial, the defendant offered to prove that immediately after the execution of the agreement it was said between the parties that if no time or place should be appointed, 1 June should be the day. But the court excluded the evidence. In submitting the case to the jury, the judge instructed them that the plaintiff could not recover upon his first count, but that he was entitled, upon the second, to recover the value of the cotton at the place and on the respective days of delivery, deducting $1,000, paid at the date of the contract. There was a verdict and judgment accordingly, and the defendant appealed.
The correctness of the opinion on the point of evidence is not questioned in the argument in this Court. The difficulty on the merits of the case arises from the want of an express provision in the contract as to the effect of a failure of Carter to name a day and place by which the price of the cotton should be regulated; and the object of the evidence was to supply that omission, and thus add to and vary the written agreement. That could not be done; and, for that reason, the evidence was incompetent. Besides, if it had been received, it would not have supplied the defect, since it only went to designate a day, but not one of the places named as that at which the market price was to govern. It was therefore also irrelevant, and for that reason ought not to have been heard.
In the state of this case the instructions to the jury were, also, in our opinion, correct. The plaintiff certainly could not recover on the general count, if an action on the special agreement could be maintained; for parties cannot resort to an implied agreement to pay the value, according to quantity and quality of an article, bargained for at an agreed price. But here the contract fixes no price, but only designates a mode of doing so. That mode failed; and consequently the plaintiff could not support any count on the special contract, that is to say, he could not recover the price as determined by (451) the price at either Fayetteville, Cheraw, or Camden, on any day between 25 January and 1 June. This was the substance of the decision in the former case on this instrument. There being, then, no special agreement still subsisting, and so in force between the parties, as to enable the seller to recover thereon any price for his property which the defendant got, it follows in justice and, as we think, in law, that there must be some other means whereby the defendant may be compelled to pay a fair price for that property. If the written agreement had stipulated, in case Carter should not select a place and name a day, that he thereby abandoned all further claim, or if, in the event it had provided some other mode for fixing a price, in those cases the agreement, being perfect in itself, would be conclusive on the rights of the parties. But, as has been already observed, this agreement is silent in those respects, and is, therefore, imperfect in not providing for an event that must have been known as possible, or even probable, and which has actually happened. Notwithstanding that omission, the defendant urges on us a construction which makes it mean the same thing as if it contained an express clause of forfeiture upon an omission by Carter to designate a day and place. But it is impossible to believe the parties meant any such thing. Suppose Carter had died the next day, before making his election, could it have been meant that McNeely was to have his crop for nothing? Certainly not. The fair interpretation of the agreement is, that it was a sale of cotton, of course for the value at the place and time of delivery; with a power, however, to the seller to vary that price by taking that of another day and place, if designated by him within a certain period. This was the seller's privilege, at least mainly so; and he may give that up without subjecting himself to the penalty of losing the whole value of the article. It is true, the special agreement is so framed as not to enable him to recover on it. But for that very reason he must have redress in the other form, since the defendant has voluntarily received the other's goods and derived a benefit therefrom, and ex equo and bono ought to pay for them. Bul. (452) N. P., 139; Payne v. Bacomb, Doug., 651. The only form in which he can recover is the general count here adopted. In fine, the special agreement does not cover the case which has happened, and therefore, as a bar to the general count, is out of the case altogether, and the seller is entitled to the remedy upon the contract implied from the benefit to the other party, accepted by him.
It is not, however, to be understood that even in such a case as this no regard is to be paid to the special agreement. The principle on which we sustain this action must be taken with this qualification: that the plaintiff cannot, by the omission to name a day or place, and by any other default on his part, deprive himself of a remedy on the special agreement, and resort to the implied contract, so as thereby to get a higher price than he would had he literally or duly observed the terms of the special contract. If, therefore, the defendant had shown that the value of cotton at his factory was greater on the days of delivery than it was at Fayetteville, Cheraw, or Camden on any day the plaintiff could have named within the period allowed for that purpose, then the special agreement could have been properly invoked as containing a price beyond which the seller could not go. But nothing of the kind appeared on the trial. The price at those places may, on the other hand, have been higher than at the factory; and, if so, although the plaintiff may not have entitled himself to the higher price, yet that furnishes no reason why he should not be entitled to recover any price at all for the cotton received by the defendant.
PER CURIAM. No error.
Cited: Winstead v. Reid, 44 N.C. 78; Lawrence v. Hester, 93 N.C. 81.
Overruled: Dula v. Cowles, 52 N.C. 292.
(453)