Simpson, Bass & Co. v. Pegram

It is unquestionably true, as contended by the defendants' counsel, that where the terms of a contract have been ascertained or where it is evidenced by a written instrument, or, as in this case, by written correspondence between the parties, the "entire construction of the contract, that is, the ascertainment of the intention of the parties, as well as the effect of that intention, is a pure question of law, and the whole office of the jury is to pass on the existence of the alleged written agreement." Spragins v. White, 108 N.C. 449.

If, however, the language used is doubtful in the sense that it requires the scientific exposition of experts or explanation by evidence of the usage of trade or other extraneous circumstances, such testimony is admissible and should, under appropriate instructions, be submitted to the jury. 1 Greenleaf Ev., 280.

It seems that the words "less brokerage, ten cents per barrel," as used in the correspondence between the parties, have, under certain circumstances, a meaning peculiar to dealings between commission merchants engaged in the flour business, in so far as they relate to the question of whether there is a sale or a consignment. This at least appears to have been the view of the defendant, who introduced testimony tending to show such meaning under "the customs of trade in sales of flour by the carload like the one in controversy." There may have been phases of the case in which a part of this testimony would have been beneficial to the plaintiffs. Be that as it may, the defendant, having (546) introduced it as explanatory of the terms of the contract, cannot complain that it was submitted to the jury for that purpose. Even had it been incompetent, and he had moved to strike it out, a refusal to do so would not have been the subject of review in this Court. S. v. Efler,85 N.C. 585.

The testimony having a tendency to throw some light upon the transaction, we cannot see how the defendant could require the court to exclude it from the consideration of the jury and decide the case upon the written correspondence alone.

Moreover, the defendant introduced several letters in reference to other shipments at various times. We must assume that he did this for the purpose of showing the course of dealing between the parties. This is an additional reason in support of his Honor's refusal to take the case from the jury.

No ERROR.

Cited: White v. McMillan, 114 N.C. 352; Lindsay v. Ins. Co.,115 N.C. 222; Edwards v. R. R., 121 N.C. 491; Kerr v. Sanders,122 N.C. 637; Blalock v. Clark, 137 N.C. 142; Wilson v. Cotton Mills,140 N.C. 56; Neal v. Ferry Co., 166 N.C. 566; Hollifield v. Telephone Co.,172 N.C. 725.

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