N. & W. Overall Co. v. Holmes

OlaeKSON, J.

The controversy between the parties, as shown by the record, is that the salesman of the plaintiff N. & W.

Overall Company, of Lynchburg, Ya., claimed he sold the defendant P. C. Holmes, of Louisburg,' N. C., a lot of overalls and shirts. The defendant was to pay plaintiff $15 a dozen for the overalls, and claimed he was to pay $10 a dozen for the shirts. It was an entire transaction — one order. The salesman made two copies of the order and turned one over to the defendant, showing the shirts were to cost $10 per dozen.

The plaintiff shipped the overalls and shirts from Lynchburg, Ya., to the defendant at Louisburg, N. C., and mailed the bill to the defendant. The bill, or invoice, sent to the defendant showed the shirts to he $11 instead of $10 a dozen.

The defendant immediately l-efused to accept the shipment, and notified both the railroad and the plaintiff, the shipment being refused on account of the price being too high. About thirty days after the arrival of the goods they were burned in the railroad depot at Louisburg.

A contract is “an agreement, upon sufficient consideration, to do or not to do a particular thing.” 2 Blackstone Com., p. 442. There is no contract unless the parties assent to the same thing in the same sense. A contract is the agreement of two minds — the coming together of two minds on a thing done or to be done. “A contract, express or implied, executed or executory, results from the concurrence of minds of two or more persons, and its legal consequences are not dependent upon the impressions or understandings of one alone of the parties to it. It is *432 not wliat citlier thinks, but what both agree.”

Prince v. McRae, 84 N. C., 674 , citing Brunhild v. Freeman, 77 N. C., 128 , and Pendleton v. Jones, 82 N. C., 249 . See, also, Bailey v. Rutjes, 86 N. C., 517 ;

Lumber Co. v. Lumber Co., 137 N. C., 431 ;

Knitting Mills v. Guaranty Co., 137 N. C., 565 ;

Mfg. Co. v. Assurance Co., 161 N. C., 96 . This is our interpretation of the definition of a contract.

The-plaintiff contends that its salesman, who had the authority to act for it, agreed to sell defendant a lot of shirts at $11 a dozen. The defendant contends that the salesman agreed to sell the shirts at $10 a dozen. There is a conflict between the piarties. This is an issue of fact for a jury to determine, upon proper instructions from the court as to the law applicable to the facts. The issue submitted on the former trial is proper — that is, “In what sum is defendant indebted to the plaintiff ?” On the hearing, the court below should give the contentions of the parties, and state the law as it applies to the facts in this case. If the jury should find the facts to be, by the greater weight of the evidence, as testified to by plaintiff’s witnesses — that the contract for the shirts was $11 a dozen, and the contract for the overalls and shirts was an entire contract, and so made and intended, and the overalls and shirts shipped together — then the answer to the issue should be the price at which the goods were sold; but if the jury should find the facts to be that the salesman of plaintiff offered to sell the shirts to the defendant at $10 a dozen, which defendant agreed to pay, and without the knowledge' or consent of the defendant sent the alleged order to the plaintiff (with the order for the overalls), stating the price of the shirts to be $11 a dozen, and the plaintiff aceepited the order on these terms, there was no “agreement of two minds,” and there was no contract between the parties, and their answer to the issue would be “Nothing.” “If the offer is stated in such terms that the offeree understands one price, while the offerer means another, the parties are never ad idem, and there is no agreement.” 35 C. L. P., p. 62 (IV.)

In this jurisdiction, as was the rule at common law, it is the province of the jury to determine the facts, and that of the trial court to state the law; and where the testimony is conflicting, as it is here, the case presented is one for the jury.

Russell v. R. R., 118 N. C., 1098 ;

Woodland & Co. v. Southgate Packing Co., ante, 116.

For the reasons given, a new trial is granted.

New trial.