PLAINTIFF'S APPEAL. (609) Plaintiff used for a penalty of $50 a day for seventy-two days, alleging that defendant refused on each day to receive freight tendered for shipment. The evidence tended to show that plaintiff deposited on the defendant's platform, the usual place for receiving freight, twenty-five bales of cotton waste, and tendered it to defendant's agent for shipment, which was refused. The bales were left on the platform. Plaintiff's president says: "Later on I called to see the agent, from time to time, as I was passing from my place of business. Every day or two I stopped to see whether or not he was in a position to ship the waste, and he said he was not," etc.
Mr. Carter, defendant's agent at Lincolnton, after testifying in regard to the transaction substantially as the president of plaintiff company, said: "After that, Mr. Abernathy made a further tender of this shipment of waste, once that I remember. That was some little time after. I could not give the exact date. It was along the latter part of March or first of April. . . . He told me he would tender it to me again for shipment."
His Honor instructed the jury that it was not enough to constitute a tender that the plaintiff placed the freight on defendant's platform merely as a matter of convenience, but that it must tender it for shipment; that simply asking the agent when the freight could be shipped was not a tender; that the president must have made an actual tender, and the defendant a refusal, to entitle plaintiff to the penalty; that it was not essential that any particular language be used to constitute a tender and refusal, but that if such language was used as "amounted in common understanding" to a tender and refusal. that would be sufficient. The plaintiff excepted. Plaintiff tendered a number of prayers for special instructions not necessary to be set out. The jury answered the third issue. "Two days," and the fourth, "One hundred dollars." Judgment was rendered upon the verdict. Plaintiff excepted and appealed. The evidence left the question of the status of the freight, after the first tender and refusal, in doubt. It seems that the freight was placed upon the defendant's platform in accordance with a custom, but without any express contract with defendant. After completing the number of bales constituting a car load, the president tendered it to the agent for shipment, *Page 501 which was refused. The freight remained on the platform, and the president of plaintiff company frequently talked with the agent about shipping. There is evidence that, some thirty days after the tender, he made a second tender. In Garrison v. R. R., ante, 575, it was conceded that defendant furnished the car upon which plaintiff loaded the lumber, and it remained on the car until shipped. There the facts were conceded. We concur with his Honor's instruction to the jury, that the status of the freight was uncertain. This is shown by the conduct of the parties. It was therefore a question for the jury, and was properly left to them. If the plaintiff wished to insist upon a daily tender and refusal, its president should have made it clear to defendant's agent that he was keeping the tender good. We can not undertake to do more than dispose of each case as it arises in regard to what constitutes a tender and refusal. When the conduct and language of the parties leaves the matter in doubt it must be submitted to the jury. His Honor correctly told the jury that they must find that there was a tender and refusal each day. Upon an examination of the entire record and the charge of the court we find
No error.