#### C. MILLHISER v. C. ERDMANN et al.

*Sale*— Contract—Assignment.

Where the terms of a sale of goods were, that the buyer should give notes for the price, but after the goods were delivered to him the buyer refused to give the notes : *Held,*that no sale was consummated by the delivery — there was only an agreement to sell, which was not perfected, and che seller could recover the goods from the buyer or from one to whom he had assigned them by a general assignment for the benefit of creditors.

This was an action oe claim and delivery, tried before *Graves, J.,*and a jury, at the February Term, 188S, of Craven Superior Court.

The plaintiff testified that during the year 1885, and since, he was doing business in Richmond, Va., as dealer in leaf *28tobacco for the manufacture of cigars, and that during said time the defendant Erdmann was doing business in New-bern, N. C. That on or about the 28th of November, 1885, the plaintiff received from said defendant a postal card as follows:

“ NewberN, November 27, 1885.

“ Dear Sir : Are you still in the leaf business ? If so, send me sample of some binders, good stock, and samples of Havana and Havana wrappers if you have some real nice stock on hand. You may also send me samples of Husto-rick wrapper if you have nice goods.

“Yours, &c.,

“0. ErdmaNN.”

To which plaintiff replied as follows:

“ December 1, 1885.

“ Dear Sir : In reply to yours of the 27th, I have sent you the following samples, per express:

“ Yeg. 20 Havana, @ $1.10; do. genuine V. A., @ $1.25; •0 do. wrappers, @ $1.25; 876 No. 488-89 wrappers, *(co,*$1.25; 242 No 466-86 wrappers, @ 35c.; 151 No. 483-83 wrappers, @ 35c.; 11 No. 486-86 binders, @ 12c.; 16 No. 487-87 do. @ 12c

“Terms, 3, 4 and 5 months notes. I have put these goods down very low, and hope to receive your order, as I feel sure the goods will give you entire satisfaction. Awaiting your prompt reply, I remain,

“Yours, &c.,

“Chas. Millhiser.”

Not hearing from Erdmann in the meantime, the plaintiff, on December 13, 1885, sent to him a letter, as follows:

“ Please let me hear from you in regard to samples ‘ leaf ’ sent you December 1, from which I hope you have been *29able to make a selection. Trusting to hear from you, and soliciting your kind favors, which shall have prompt and best attention,

“Yours, &c., Chas. Milli-iiser.”

That Erdmann received the samples in due course, and also the letters above set out; and on December 27, 1885, the plaintiff received a letter from Erdmann, as follows:

“ NewberN, December 25,1885.

“Dear Sir: You can send me the following goods: Case 242 and 151, the two best bales Havana No. 16 and 6; and the binders I don’t like; I must have better ones; if you have better, you may send me one case, and I would like to have a nice case of cheap cigars at about $10 per thousand, put up 50 in a box.

“ Hoping business is good with you,

“ I am,- &c.,

“ C. ErbmaNN.

“ P. S. You send the tobacco ; be sure and give me weight for government book.”

That on December 28, 1885, the plaintiff mailed to Erd-mann the following letter, which contained the invoice and the three promissory notes therein mentioned, all of which were received :

“Dear Sir: Your favor 25th received, and I hand you enclosed invoice of two cases wrappers and two bales Havana, shipped by steamer as per your order. Am sorry the binders do not suit you. As I do not handle any Penn, cigars I turn your order over to Messrs. H. Brownheld & Bro., who said they would send you samples.

*30“Enclosed I band yon three notes at three, four and five months, which please make payable at your bank and return signed, in settlement, at earliest convenience, and oblige,

“Yours truly,

“Chas. Millhiser.”

On the same day the plaintiff shipped by steamboat the tobacco as set forth in the letter, and it was admitted that the same was duly received by Erdmann, and that the value thereof was as stated in the complaint, to-wit, four hundred dollars.

The defendant Erdmann did not execute and send to plaintiff his notes; and on January 16, 1886, plaintiff received from said defendant a postal card as follows :

“Dear Sik : I jnst received the goods; send drafts to acceptance,' as long time on them as possible. I will accept and return ; that is the way I do with the rest of the dealers.

“Yours truly,

“ C. Erdmann.”

On the same day the plaintiff replied :

“DearSir: Your favor of the 15th is received, and in reply will say, that when I sent you samples I wrote you on December 1, giving you price and terms, notes at three, four and five months. It is with this understanding you ordered the goods, and on these terms I shipped the goods. More than half your bill is Havana, on which the duty is 35 cents per pound, and must be paid in cash before goods can be removed, and the balance of time is never over ninety days on Havana, but I have put all this in your bill as agreed upon, at three, four and five months, which is an average of four months time to all; but you can either send me the notes at three, four and five months, or if you prefer, you may make five notes at two, three, four, five and six months *31from date of shipment, December 28. This is the best I can do; I cannot regulate my business by what some other houses do. The regular terms of some of the best and largest New York firms are four months note on seed leaf, and duty cash and ninety days note for balance on Havana tobacco, but I gave you more liberal terms; I gave you prices and terms, as per my letter of December 1, at three, four and five months notes, and it was on these terms you bought the goods, and you should make settlement accordingly; but I enclose you five notes at two, three, four, five and six months, and you can take your' choice, either send the first three notes or these five notes, which I trust will be satisfactory; but if you are not satisfied, you will please return me the entire lot of goods and send me shipping receipts, and oblige,

“ Yours, &c.,

“Chas. Millhiser.”

‘That Erdmann did not reply to this letter, and did not send his notes as therein requested, nor any notes. Plaintiff failing to get the notes or a return of the tobacco, came to Newbern, and on February 7, 18K6, made a demand on W. W. Clark, and all the defendants, for the tobacco afore-' said, the delivery of which was refused.

It was admitted that the tobacco was in the actual possession of the defendant John Schissler at the time of demand.

Plaintiff further testified, that he had contracted to sell the tobacco for the negotiable promissory notes of the defendant Erdmann, as set forth in the above correspondence, and only on the terms therein stated, and that said defendant had not complied with said contract; that said notes, such as taken in the course of trade, are of value to the plaintiff as commercial paper.

The defendants introduced the following evidence:

*32An assignment of defendant Erdmann of a stock of goods, which included the said lot of tobacco, to W. W. Clark, for the benefit of creditors, recorded on the, 28th of January, 1886; that said assignee at once took charge of said stock and placed it in the hands of defendant Schissler as his agent. It was admitted that no part of the contract for the purchase of said tobacco was ever registered.

The defendant introduced a bill for the goods in controversy, which was sent to the defendant C. Erdmann at the time of the shipment of the goods by the plaintiff, of which the following is a copy:

All sales not settled in ten days from date of purchase subject to draft with current exchange on New York or Richmond.

Richmond, Va., Dec. 28, 1885.

Mr. C. Erdmann, *New hern, N. G.,*

Bought of OHAS. MILLHISER,

Manufacturer of Fine Cigars, Packer of Seed Leaf, and Importer of Havana Tobacco.

Interest will be charged on all accounts not paid at maturity. Terms : 3, 4 and 5 Mos. Notes. No. 15 South 13th Street.

1 Case Wrappers, No. 151, 483 — 83=400 lbs., @ 33 $132.00

1 Case Wrappers, No. 242, 466 — 86 = 380 lbs., @ 35 133.00

1 Bale Hav., Vega. 16, No. 1,077, No. 120 — 13=107lbs. @$1.15 123.05 1 Bale Hav., Vega. 6. No. 1,055, No. 134 — 13=121 lbs. @ 1.25 151.25

Drayage, 50

$539.80

O. D. Line, via Norfolk.

The defendant insisted that an issue should be submitted to the jury, as to the waiver of the condition upon which the goods were agreed to be sold arising from the delivery of the goods to the defendant Erdmann by the plaintiff, before the performance of the condition and the circumstances attend*33ing the delivery. The Court held that there was no question of fact for the jury, and gave judgment for the plaintiff.

The defendants excepted and appealed.

*Messrs. C. Manly*and *W. E. Clarke,*for the plaintiff.

*Mr. W. W. Clark,*for the defendants.

Avery, J.

(after stating the case). This cause was before this Court at the September Term, 1887 (98 N. C., 293). A new trial was then awarded the plaintiff, and the Court said: “ No sale of the tobacco was consummated or made effectual under the contract. There was only an agreement to sell, which was not perfected. The plaintiff did not agree or intend to part with his tobacco, until he received the notes, and Erdmann had no right to expect to get title to it until he sent the notes.”

The case comes up now on the defendants’ appeal; but the facts are precisely the same as those stated in the former case, except that a copy of the account rendered, including bill-heads, by the plaintiff, and dated December 28, 1885, is put in evidence. . It is plain, as decided by this Court, that the letters of the parties, written December 1, December 25, and December 28, 1885, and two of January 16,1886, establish a contract between the parties, slightly modified by the indulgence of the plaintiff, extended at the defendant’s request, but still an agreement assented to by both, t'hat the contract should be complete so as to pass title to the tobacco on the return to the plaintiff of the notes signed by the defendant. We cannot agree that the plaintiff shall be bound, and this express contract abrogated or varied by implication, arising out of a note at the top of his bill-heads, especially when the defendant agreed to sign the drafts, but did not in any way signify his assent to the terms printed at the head of the bill, and was in no way bound by a proposal to buy on such terms.

*34If there had been no correspondence in reference to terms, and the goods had been ordered, shipped and received, with no allusion to the time and manner of payment, except that contained in the account rendered, we would have deemed it our dutj'' to give grave consideration to the argument of the learned counsel for the defendant, and the authorities cited by him.

No error. Affirmed.