Scott v. Wood ( 1868 )

Jeffords, J.,

delivered the opinion of the court.

There are several assignments of error in this case, but it is conceded there is but one question involved, and that is with reference to the construction of the written contract upon which suit is brought.

It is admitted that on the 14th day of September, 1863, the following written contract was entered into by the parties:

“ I have this day sold C. W". "Wood 200 bales of cotton, more or less, for which he is to pay me 13 cents per lb. when delivered at Moore’s Ferry. I binding myself to deliver the said cotton at Moore’s Ferry in 15 days from this date, in fair shipping order; so soon as delivered, then to be at said C. W. "Wood’s risk.

“James F. Scott,”

“C. W. "Wood.”

“Canton, Sept. 14,1863.

And that afterwards on the 21st day of September, 1863, the following was substituted in the place of the foregoing contract:

“Ihave sold to C. W. Wood two hundred bales cotton, more or less, at thirteen cents per pound, which I am to deliver at Canton depot, by his paying me an additional amount of four dollars per bale, said cotton to be at my risk until I deliver it at Canton, and to be delivered by to-day week. This 21st September, 1863. Unavoidable accidents excepted.

(Signed) “J. F. Scott.”

It is also admitted that both of these contracts referred to the same lot of cotton; that it never .was delivered at Canton; and was burned by the insurgent authorities on the same day the last contract was signed, the proof tending to show that it was burned after the signing of the contract.

On the trial of the case before the Circuit Court, it appears that the court refused a multiplicity of instructions asked by both plaintiff and defendants, and in lieu of the same gave the following:

1. If the jury believe from the evidence that plaintiff on the 21st September, 1863, contracted to sell the defendants a lot of cotton, and by the terms of the contract, plaintiff agreed to keep the cotton at his risk and deliver it at Canton depot, to defendants, before the money was to be paid for it, and excepted unavoidable accidents, and that he never delivered as agreed upon, then the law is for the defendants, and the jury will so find.

2. The court instructs the jury, that the legal effect of the instruments of writing in evidence was to entitle plaintiff to recover only upon delivery of the cotton in Canton, and if, from the evidence, they believe the plaintiff has not delivered the cotton in Canton, they should find for the defendants.

It was not only the privilege, but the imperative duty of the court to construe the written contract offered in evidence; and we are clearly of the opinion that the construction given to the contract was correct.

We are unable to discover any error in the proceedings and record in this case.

Judgment is therefore affirmed.