Eno Cotton Mills v. Mudge

³⁰³ Urner, J., delivered the opinion of the Court. The appellant is a corporation engaged in the manufacture of cloths and yarns at Hillsboro, North Carolina-, and the appellees are in the wholesale paper business in the City of Baltimore. In August, 1918, the appellees sold to the appellant 11,914 pounds of blue textile wrapping paper, which was duly delivered and for which the purchase price, amounting to $1,213.34, was fully paid. The paper was to be furnished in sheets of specified dimensions, with the corners cut out in such a way as to admit of the sheets being properly folded as covers for1 the goods upon which they were intended to be used.

The delivery of the paper occurred during the month of December, 1918, but, its early use not being required, it was stored away and left unexamined until the following June when, some of the packages being opened, it was found that the corners of many of the sheets had not been cut out properly, and that much of the paper consequently was not adapted to the purpose for which it had been purchased. As the result of negotiations on the subject, it was agreed that the appellant should use as much of the paper as it possibly could, and then return the remainder to the appellees, who were to make a proportionate repayment of the purchase price. In October, 1919, the appellant proposed to return 8,114 pounds of the paper, and demanded reimbursement of the price paid for that much of the quantity originally ordered. The proposal and demand thus made were refused by the appellees on the ground that the appellant had not used all of the paper available for its needs.

Suit, was soon afterwards brought on the agreement for repayment to which we have referred, and the trial resulted in a directed verdict for the defendants. The decisive question is whether the evidence in the case, which was offered wholly by the plaintiff, Was legally sufficient to entitle it to recover on the special agreement upon which the suit is based.: In order to secure a verdict it was necessary for the plaintiff to prove that the agreement on its own part had been ³⁰⁴ duly performed. It had agreed to use as much as possible of the paper supplied by the defendants, and it was only as to the residue that they were to make repayment. The agreement was the means of compromising a disputed question of liability.

The defendants had denied that they were legally bound to take back the paper and repay the purchase price in view of the fact that the complaint as to the cutting was not made until six months after delivery, when they were no longer in a position to have recourse1 to1 the establishment where the paper had been thus prepared. It was in the adjustment of the dispute on this