A. L. Arundell Co. v. Ivey Mill Co.

This is an action to recover $81.50, the price of certain oil, which the plaintiff alleges it sold to the defendant, which was tried in the Superior Court on appeal by the defendant from the judgment of a justice of the peace.

At a term of court prior to the one at which the action was tried, the plaintiff moved to dismiss the appeal "on account of no notice being given." His Honor denied the motion and allowed notice to be given nunc protunc, and the plaintiff excepted.

During the trial, the defendant introduced a duplicate or carbon of the order for the oil, which he gave the salesman of the plaintiff, which contains the following clause:

"NOTICE. — It is hereby understood and agreed to by and between the Standard Oil Leather Dressing Company and the purchaser, that should these goods prove unsatisfactory after a thorough trial by the purchaser up to or within thirty days after the delivery, the remaining quantity may be returned, without any charge for what has been used in the test."

The plaintiff excepted, and afterwards introduced the original order.

George F. Ivey testified in behalf of the defendant as follows: "I am superintendent of defendant company. In May, 1912, Applebanner, salesman of the plaintiff, came to see me. He said he had a very fine quality of belt oil — best ever invented; wanted me to buy (240) some. The order is in the possession of the plaintiff. Applebanner said it was necessary for us to be shown how to apply the oil, and that the company could send a demonstrator; to be sure not to use the oil till the demonstrator arrived."

Plaintiff objected to this evidence. Objection overruled; plaintiff excepted.

The oil was unsatisfactory to the defendant, and was returned to the plaintiff.

There was a verdict and judgment for the defendant, and the plaintiff excepted and appealed. It was within the discretion of the judge to allow the notice of appeal to be given after the case was docketed in the Superior Court. Marsh v.Cohen, 68 N.C. 283; Wells v. Johnson, 109 N.C. 852. In the last case the Court says: "Any hardship which might, under any circumstances, be entailed on an appellant by failure to serve notice in a legal manner and within the statutory time is removed by the discretion reposed in the appellate court to permit notice to be given after that time."

Abell v. Power Co., 159 N.C. 348, and others like it, relied on by the plaintiff, are not applicable, because in them the motion to dismiss was on the ground that the appeal had not been docketed according to law, and in this case the basis of the motion is that notice of appeal was not given.

If there was error in admitting carbon copies of the written order, it was cured when the plaintiff, in order to make out its case against the defendant, introduced the original.

The evidence of the conversation with the salesman of the plaintiff is competent. It does not vary or change the written order, and is important and material only as explanatory of the delay in making a (241) test of the oil, in order that the defendant might avail itself of the provision in the order to return if unsatisfactory after a test.

If the evidence is competent, it follows that there was no error in adverting to it in the charge.

No error.