This is an action to recover damages for nondelivery of 200 bales of cotton. A witness, one of the plaintiffs, went to see the defendants 7 February. They had 200 bales for sale, which the witness sampled and asked an option upon them, to see if he could place them. The defendants on that day gave him this option, dated 7 February and signed by them: "We offer you 160 to 200 bales of cotton, grades as you have seen, at 8 cents per pound, F. O. B., provided we do not receive better price by mail today. This offer closes by 8 February." Later, on that day (7 February), the plaintiffs wired the defendants: "Wire me at Mount Gilead, at once, if my offer is bettered." The next day, 8 February, the witness wired the defendants: "Have written once, wired twice; no reply; we claim cotton on your offer. Shipping instructions will follow." He testified further that on 9 or 10 February, he went to Troy, where the defendants resided, twenty miles through the country, to weigh up, pay for, and ship, but did not do so because of rain; cotton not under shelter and wet. As soon as it was dry and the rain and the condition of the river would permit him to get there, he says he went back, on 15 February, and told the defendants he had come "to weigh,pay for, and ship cotton"; whereupon they told him they would not let him have it; that cotton had gone up to 8 1/2 cents and they could not afford to let him have it at 8 cents. The witness further says he (308) demanded the cotton and the defendants refused; that he was able and ready to pay; that he did not tender the cash; that he did not have enough cash in hand, but had money in bank and credit in bank, and "could have paid cash that day." That he had resold part of the cotton to others at an advance, and that it was a cash transaction. *Page 257
Upon this evidence it was error to nonsuit the plaintiff. The option to "close by 8 February," included February 8th, till midnight. "By 8 February" means "not later than 8 February." Cotton Mills v. Dunston,121 N.C. 16, and cases there cited. Besides, by the terms of this option it could operate only on 8 February, for it was given on 7 February, and the defendants reserved the right to accept a higher bid if they received it by mail on that day.
The peremptory refusal of the defendants to deliver the cotton "because the price had gone up" made it unnecessary to make any tender of the actual cash, for on this motion the witness's testimony must be taken as true, that he offered to pay and was ready and able to pay. Smith v. B. and L.Assn., 119 N.C. 260, and cases there cited; Grandy v. Small, 50 N.C. 50. Whether there was unreasonable delay in going for the cotton is a matter for the jury, under instructions from the Court, and upon which the defendants may wish to offer evidence. The acceptance of the offer was, on 8 February, in time. The execution of the contract, the payment and delivery must be in a reasonable time.
The failure to aver in the complaint that the plaintiffs were "ready and able to pay" is a defective statement of a good cause of action, since this would have been cured by amendment if a demurrer on that ground had been filed, and indeed, it is "aided" by the answer, which relies upon a release by unreasonable delay and failure of tender. Clark's Code (3 Ed.), sec. 242, and cases cited. Such defect could be cured by amendment of pleadings to conform to the proof, even after verdict. The Code, sec. 273. The object of The Code system is to try cases (309) upon their merit.
The question of the measure of damages is not one which arises upon an appeal from sustaining a demurrer to the evidence for failure to show a cause of action.
Error.
Cited: S. c., 137 N.C. 141; Hughes v. Knott, 138 N.C. 112; Wilson v.Telephone Co., 139 N.C. 396; Wilson v. Cotton Mills, 140 N.C. 57; ib., 554; Gaylord v. McCoy, 161 N.C. 694; Medicine Co. v. Davenport,163 N.C. 300; Hardware Co. v. Banking Co., 169 N.C. 748; Headman v. Comrs.,177 N.C. 263; Brewer v. Ring, ib., 485; Rogers v. Piland, 178 N.C. 72. *Page 258