Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-10-08
From the Norfolk Journal.
An Important Decision.


contracts
The following opinion was given in the
Hastings Court of Portsmouth, on Tues
day last, by Judge Oldfeld
Gilbert Elliott & Co., VS.. the Whining.
ton and Weldon railroad company, ct. ais
in chancery.
Messrs. Scarburgh, Duffield and Sharp
for plaintiff, and Messrs. Holiday, Gayle
& Watts for defendants.
Bill-The bill in this suit sets forth sub.
stantially that on or about September ID,
1864, a contract was made by and between
the plaintiffs and the Wilmington and We'll
don railroad company, by the terms of
which it was agreed that the plaintiffs
should deliver to said company one hun
dred tons of good serviceable railroad iron
at klnston, n. 9. In consideration of
which the said railroad company agreed to
deliver to plaintiffs two hundred tons of
old worn out railroad iron OF Goldsbcro'
or Wilmington at the option of the rail
road company that although the plain
titfs delivered, according to contract the
ONT hundred tons of iron, yet, although
often requested, the Wilmington and
Weldon railroad company has refused aud
neglected to deliver the two hundred tons
OF old iron, or any part of the same. Dam
ages laid at So, 900 and interest.
Answer-The answer Of the Wilmington
and Weldon Railroad Company admits
the making of the contract as set forth in
the bill, and also the delivery Of one hun
dred tons of iron by the plaintiffs to them.
but set forth the following defences
l. That they delivered all, OF nearly all,
of said two hundred tons OF iron to plain
tiffs, in full satisfaction Of the contract,
| 6. That at the time the said contract
was made, plaintiffs We're acting agents
for the Confederate States, and all that
| plaintiffs did in and about tho premises,
was done rs such agents; also that the
funds used by plaintiffs for the pnrchase
of one hundred tons of good iron from the
Atlantic and North Carolina railroad COM
pany, exchange with the Wilmington and
Weldon railroad company for the two
hundred tons of iron, were the funds of
the Confederate States Government.
g. That the State of North Carolina
and others had lien by mortgage on the
one hundred tons of good iron purchased
by plaintiffs from the Atlantic and North
Carolina railroad company; and, therefore,
neither the plaintiffs nor the Confederate
States government had title to said one hun
dred tons of good iron, and could trans
fer none to the Wilmington and Weldon
railroad company, except such title as was
subject to the lien created by said mort
gage.
4 That the said contract was 'illegal,
null and void, and in violation of the
Constitution and laws of the United States
and State of North Carolina ;" that the
two hundred tons of old iron which was to
be received by the plaintiffs from the
Wilmington and Weldon Railroad Com
pany was intended by them to be APP
piled in the construction of iron clads for
the use of the Confederate States Navy.
First-The first question to be decided
in this case is was there delivery of the
two hundred tons of old iron, or any part
thereof, to the plaintiffs by the Whining
ton and Weldon Railroad Company in &C
cor1ance with the terms of the contract
It is clear that the burthen of proof is
with the defence to show the delivery.
The decision of this question upon a
review of the testimony, is attended with
but little difficulty. Mr.. J. J. Robertson,
whose business it was, as agent for plain
tiffs, to know all about the matter, testi-
fies positively and unequivocally that there
was no such delivery and he says further
81 am very positive that l made three
different applications for the delivery of the
iron to Colonel Fremont and Mr.. Wallace,
1.-THE Superintendent and President of the
Wilmington and Weldon Railroad Com
pany); they replied that they were SO
pressed by the want of transportation that
they could not deliver it, but would do so
as soon as they could.
Although the Wilmington and Weldon
railroad company prove that one hundred
and three tons and one Thousand eight
hundred and ten pounds were placed on
the wharf at Wilmington, and, perhaps,
more, las at that point the scales with
which the weighing was done became dis
ordered and, although the pile of iron on
the wharf was pointed ont to Mr.. Robert
SOB and he was told that it was consid cred
at his risk, (Mr. r., for some reason not
remembered, declining to receive it,, sure
ly it cannot be that this was a delivery. [
do not understand that the authorities
quoted by counsel for defence sustain
any such proposition as this,
Lord Peterborough, in Hanson VS.. Mey-
ers. Easts r. GA, says. in delivering the
opinion of the court, "If anything re,
mains to be done on the part OF the seller.
as between him and the buyer, before
the commodity purchased is to be deliver
ed, complete present right of property
opinion all the authorities quoted by coun.
sci coincide with this learned opinion, and
I have no doubt it is the law in Virginia.
In addition to his, it is, [ think, pro
per and reasonable presumption, from the
evidence, taking into consideration the
bulky nature of the old iron, that the iron
so claimed to be delivered to plaintiffs
remained on the wharf where it was put
until the restoration of the railroad to the
Wilmington and Weldon railroad compa
ny by the Federals; which pile was subse
quently sold by the Wilmington and Wei
don railroad company and the proceeds OF
the sale applied to their own use.
In consideration of all these facts anG
circumstances. | am irresistibly forced tC
the conclusion that there was no delivery
to the plaintiffs of the 200 tons of old iron
or any part of the same in satisfaction OF
part satisfaction of the contract.
Second-Were the plaintiffs in this tran
saction the agents of the Confederate States
Government.
I do not consider it necessary, after the
critical analysis given to the testimony on
this point by the counsel, to discuss al
length the merits of this question. The
only direct and positive testimony in the
case shows conclusively to my mind thai
the plaintiffs at the time were contractors