McNeely v. . Carter , 23 N.C. 141 ( 1840 )

It must be admitted that the contract to be expounded has not been expressed in very perspicuous language, nor can we be sure that any exposition which may be given of it will be free from error. But in our judgment, the meaning assigned to it in the court below is not the correct one.

According to that interpretation, the contract substantially is to allow the highest price which cotton may bear at either of the three named markets on any day between the execution of the contract and the first of June, thereafter. Now, an obvious — and very strong — objection to this interpretation is, that had the parties so meant, nothing was easier or more natural than to have said so. It can scarcely be conceived that if this had been the object of the bargain, so roundabout a mode of declaring their meaning, or of providing for the execution of it, would have been resorted to.

The next objection to this interpretation is that it makes the bargainunequal, which, in the absence of plain stipulations to that purpose, it will not be presumed to be. If the defendant, in selecting a day and a market for fixing the price of the cotton, can act retrospectively, he must gain, and the plaintiff must lose, by the selection. Of course, he will name the day and the place when and where the price was highest. Finally, we think this advantage on the part of the defendant (143) cannot fairly be inferred from the language of the instrument. All is fixed by the contract at the time of its execution, except the price; and the language used in regard to this seems altogetherprospective in its character: "The price to be fixed in the following manner." "The said Carter is to select either Fayetteville, Cheraw, or Camden, and to name a time, and the prices are to be regulated by the prices at the named market and time." "The price to be the same as good crops of cotton sell for at the time." The just inference from this seems to be that Mr. Carter was to name beforehand a market and a day by which the price was to be regulated.

Entertaining this opinion, we hold that the jury was misdirected, and that there ought to be a new trial.

PER CURIAM. Venire de novo.

Cited: Carter v. McNeely, post, 449; Stafford v. Jones, 91 N.C. 195.