April 30, 1915. The opinion of the Court was delivered by This is an action by the plaintiff against the defendant for damages. The plaintiff was the proprietor of a picture show operating in the city of Spartanburg. The undisputed testimony is as follows: The defendant agreed to furnish the light at a "flat rate," payable weekly, in advance. There was evidence of an agreement to put in a meter, but the meter was not installed and there is no evidence of a new contract for deferred payment. The first and second week the plaintiff paid the charges. On the third week, the last week, the plaintiff delayed payment. On Saturday, the last day of the last week, the defendant made several attempts to collect the amount due. In the afternoon of Saturday, Mr. Walker, an agent of the defendant, met the plaintiff and the plaintiff gave him a check on a bank in Charlotte, N.C., for the amount due. This check was carried by Mr. Walker to the office of the defendant. The defendant refused to accept the check. The plaintiff says "about half or three-quarters of an hour this man and a lineman came back and said that Mr. Aiken (defendant's agent) refused to accept the check and that I would have to pay him in cash. I told *Page 34 him I could not pay in cash and he motioned to the lineman and he went up the pole and cut off the light." Again, "I offered Walker, when he came back, to get him the money or a good endorser. He motioned to the lineman to cut off."
There was evidence that the plaintiff then applied to Mr. Aiken to restore the connection, but this was refused and the plaintiff brought this suit for failure to furnish the light according to the contract.
The plaintiff recovered judgment for fifty dollars in the magistrate's Court, which was affirmed in the Court of Common Pleas. The defendant appeals to this Court on several exceptions. Only one question need be considered.
Is there any evidence that the defendant violated its contract? We see no evidence of it.
The plaintiff said the original contract was for ten dollars per week. As to the time of payment he is silent. The defendant's witness testified twice that the payments were to be made in advance. The plaintiff went back on the stand, but did not deny that the payments were to be made in advance. It is true the record shows that during the second week there were two payments and they were not in advance, but there is no word of testimony to show that the time of payment was changed by agreement. On the third week indulgence was given until the last day of the last week and the latter part of that day. It is also true that the charge per week was changed from ten to seven dollars. There was evidence that the defendant agreed to put in a meter. About this there was dispute. It is not clear that the failure to put in the meter played any part in the case. The defendant demanded seven dollars and the plaintiff gave him check for seven dollars. The defendant refused the check. The check is not payment (unless so received). It is not tender. The plaintiff did not rely upon it as either, for he attempted to prove a real tender. In this he failed. *Page 35
He says, "at that time I had the money." Where? In his room, in his pocket or in his hand? Again, "at the time I offered the money, I was in a position to pay the money." This is no clearer than the other. Plaintiff is not required to use the word "tender" but he is bound to prove the facts from which tender may be inferred. If the plaintiff had said to Mr. Aiken "if you will connect up the wires again, I will pay you the seven dollars," the statement of an offer would have been true, but it would not have been payment or tender. The plaintiff must prove his right to the lights and the defendant has deprived him of that right. This the plaintiff failed to do and the judgment is reversed.
MESSRS. JUSTICES HYDRICK, WATTS and GAGE concur in the opinion of the Court.