
    W. A. HAIR v. McCONNELL & BROOKS.
    (Filed 31 October, 1923.)
    Appeal and Error — Instructions—New Trials.
    - Where bales of cotton are sold under contract allowing the seller to draw on the purchaser in a proportionate part of its market value, and to fix the price within a certain period of time at which the cotton was to be sold, and upon the trial a letter from the purchaser is introduced offering to vary the original contract, if accepted at once, the receipt of the letter and its contents being admitted, but the seller denying his acceptance, an instruction that is materially confusing as to the admission of the receipt of the letter containing the offer and its contents, and that of its acceptance, is prejudicial to the seller, and is reversible error.
    Appeal by defendants from Devin, J., at January Term, 1923, of BladeN.
    Civil action to recover damages for alleged breach of contract in connection with the sale and purchase of a quantity of cotton.
    From a verdict and judgment in favor of plaintiff, the defendants appealed, assigning errors.
    
      E. F. McCulloch and McLean, Varser, McLean & Stacy for plaintiff.
    
    
      Oates & Herring, Robert H. Dye, and Lyon & Johnson for defendants.
    
   Stacy, J.

On 2- October, 1920, plaintiff and the defendants entered into a contract, whereby plaintiff was to deliver a certain number of bales of cotton to tbe defendants and receive 80 per cent of tbe market price on delivery, witb tbe option and right to fix tbe price for final settlement of said cotton at any time prior to 1 March, 1921, on tbe basis of 30 points over tbe New York market on tbe day of call.

Pursuant to this agreement, xolaintiff delivered to tbe defendants at Fayetteville, N. C., 100 bales of cotton and received 80 per cent of tbe then market price. Plaintiff later delivered five additional bales, making 105 -bales in all.

It is agreed that on 3 February, 1921, tbe parties entered into a supplemental contract in regard to tbe cotton in question, but tbe exact terms of this supplemental agreement are in dispute. Defendants contend that their letter of said date, addressed to tbe plaintiff, contains a statement of tbe understanding between them. This letter is as follows:

“In order to get your call cotton fixed, w’e will, as a personal favor, turn over receipts for 54 bales on payment of $2,950 instead of $3,195.97, as agreed by your brother. And further agree to carry your other 55 bales for you to 9 cents.
“This is an effort to get tbe matter fixed this afternoon, -and we will not bold it open unless it is agreed to this afternoon and tbe $2,950 paid not later than tomorrow.”

Plaintiff admits receiving this letter, and has no objection to its contents, but be says that tbe whole agreement is not incorporated therein. Terry v. R. R., 91 N. C., 236. It was further understood, according to plaintiff’s contention, that be was to have until 1 October, 1921, within which to call for a final settlement at 30 points over tbe New York market. Tbe question of extending this time from 1 March to 1 October is tbe point of difference between tbe parties.

As bearing' upon this phase of tbe case, bis Honor instructed tbe jury as follows:

“It appears that thereafter a supplemental or amended contract was entered into, as shown by the letter of 3 February, and admitted by both parties, whereby defendants agreed upon plaintiff’s taking up half tbe cotton, or having bis brother to do so, for tbe sum of $2,950, defendants would carry tbe contract on, and extend plaintiff’s right to call for same or similar cotton, or order-it sold on any date at New York market plus 30 points, up to 1 October, 1921, provided tbe price of tbe cotton did not decline to or below 9 cents per pound.”

Defendants assign this instruction as error, because they say it conveyed to tbe jury tbe impression that tbe plaintiff’s contention in regard to tbe supplemental contract was not denied; whereas, as a matter of fact, tbe vital question of time extension was in dispute. Plaintiff replies to this by saying that tbe expression, “and admitted by both parties,” employed by bis Honor in tbe above charge, bas reference only to tbe letter of 3 February being admitted by botb parties, and not to tbe contract.

Upon tbe record as presented, we tbink tbe instruction was prejudicial to tbe defendants’ cause, and that a new trial must be awarded.

New trial.  