Millhiser v. Erdmann

(after stating the case). This cause was before this Court at the September Term, 1887 (98 N. C., 293). A new trial was then awarded the plaintiff, and the Court said: “ No sale of the tobacco was consummated or made effectual under the contract. There was only an agreement to sell, which was not perfected. The plaintiff did not agree or intend to part with his tobacco, until he received the notes, and Erdmann had no right to expect to get title to it until he sent the notes.”

The case comes up now on the defendants’ appeal; but the facts are precisely the same as those stated in the former case, except that a copy of the account rendered, including bill-heads, by the plaintiff, and dated December 28, 1885, is put in evidence. . It is plain, as decided by this Court, that the letters of the parties, written December 1, December 25, and December 28, 1885, and two of January 16,1886, establish a contract between the parties, slightly modified by the indulgence of the plaintiff, extended at the defendant’s request, but still an agreement assented to by both, t'hat the contract should be complete so as to pass title to the tobacco on the return to the plaintiff of the notes signed by the defendant. We cannot agree that the plaintiff shall be bound, and this express contract abrogated or varied by implication, arising out of a note at the top of his bill-heads, especially when the defendant agreed to sign the drafts, but did not in any way signify his assent to the terms printed at the head of the bill, and was in no way bound by a proposal to buy on such terms.

*34If there had been no correspondence in reference to terms, and the goods had been ordered, shipped and received, with no allusion to the time and manner of payment, except that contained in the account rendered, we would have deemed it our dutj'' to give grave consideration to the argument of the learned counsel for the defendant, and the authorities cited by him.

No error. Affirmed.