
    THE T. C. MAY COMPANY v. THE MENZIES SHOE COMPANY.
    (Filed 3 October, 1923.)
    1. Evidence — Written Contracts — Parol Evidence.
    Exception that the written contract is the best.evidence of its contents is without merit when the parties to the action have admitted its terms and no dispute has arisen on the trial in respect to them.
    a. Evidence — Trade—Custom.
    Those whose knowledge of a custom in trade, from their own personal 'dealings and otherwise, are competent to give testimony on the trial as to the established'custom therein.
    3. Same — Vendor and Purchaser — Contracts—Reasonable Time for Acceptance — Presumptions.
    Where a traveling salesman receives orders from a customer of his house, subject to its acceptance, without stating the time in which such right shall be exercised, the law presumes that a reasonable time therefor is given; and upon competent evidence as to what duration is reasonable, a question is presented for the determination of the jury.
    4. New Trials — Appeal and Error — Harmless Error.
    A new trial will not be awarded on appeal for harmless error upon the former trial that was not prejudicial to the appellant.
    5. Attachment — Levy—Process—Amendments—Courts—Statutes—Public Officers.
    A warrant in attachment, in substantial conformity with our statute, C. S., sec. 806, and, in fact, executed by the deputy sheriff of the proper county, is valid, and will not be held otherwise when verified by a proper agent, though by apparent clerical error it was stated in its beginning to have been made by a member of the firm, the power of the trial judge to allow amendments being plenary under the provisions of C. S., sec. 549.
    Appeal by defendant from Kerr, J., and a jury, at April Term, 1923, of Nash.
    
      Manning & Manning, Finch & Vaughan, and J. T. Valentine for plaintiff.
    
    
      Upham, Blade, Bussell & Bidiardson and Austin & Davenport for defendant.
    
   ClaeicsON, J.

The facts essential are set forth in the opinion.

This case was before this Court at Fall Term, 1922. (See 184 N. C., 150.)

The court below, in that case, nonsuited the plaintiff, and a new trial was granted by this Court. Adams, J., for the Court, clearly and concisely states the law applicable, and then the facts on which a new trial was granted, as follows: "Inspection of the record and examination of the briefs filed by counsel lead to the conclusion that the controversy as to the alleged acceptance should have been submitted to the jury. There is evidence tending to show that on 6 February the plaintiff signed and delivered to the defendant’s salesman two orders for shoes, one of which was to be filled soon thereafter, and the other 25 July; that the defendant acknowledged the receipt of these orders, and informed the plaintiff that they should receive prompt attention; that the custom of the trade at that time required of the defendant acceptance or rejection of the orders within eight or ten days; that the shoes described in the first order were shipped in the month of February, and that there was no further communication concerning the order until 27 June, when the defendant wrote the plaintiff that it was 'receiving the defendant’s preferred attention,’ and requested additional information as to the plaintiff’s financial condition; that subsequent correspondence took place between them, resulting in the defendant’s cancellation of the order. It is unnecessary to recapitulate the contentions of the parties, for the reason that the evidence, in our opinion, is of sufficient probative force to justify its submission to the jury on the question of the defendant’s acceptance of the order. Of course,- we express no opinion on the merits. The judgment of nonsuit must be set aside and the controversy submitted to the determination of another jury.”

' The following issues were submitted to the jury:

“1. Did the plaintiff, T. 0. May Company, order from the defendant, The Menzies Shoe Company, through' the defendant salesman, C. W. Daniel, the bill of shoes dated 6 February, 1919, subject to the defendant’s acceptance in due course of business? Answer: 'Yes.’
“2. Did the defendant accept the said order and thereby contract to ship the said bill of shoes at price quoted on said date? Answer: ‘Yes.’
“3. What, if any, damage has plaintiff sustained by reason of any breach of said contract? Answer: ‘$948.70 and interest from date of attachment.’ ”

The counsel and the parties to the action agreed that the court answer the first issue “Yes.”

There are twenty-six exceptions. We have given each of them careful and thorough consideration, and will not consider them seriatim, but will consider the main questions involved, which are covered by the exceptions.

The real contest before the jury was the acceptance by the defendant of plaintiff’s order and damages. The validity of the attachment we will consider later.

The witness E. L. Bell, for plaintiff, was asked the' following question : “Will you state to the jury the exact contract between the T. C. May Company and The Menzies Shoe Company, as made by you and Mr. Daniel?” The defendant excepted. This exception cannot be sustained.

The court below is given large discretionary power as to the conduct of a trial. Bowman v. Howard, 182 N. C., 662; Banking Co. v. Walker, 121 N. C., 115; Shober v. Wheeler, 113 N. C., 370; S. v. Anderson, 101 N. C., 758; Cheek v. Watson, 90 N. C., 302, and Brooks v. Brooks, ib., 142. This discretion frequently has the effect of shortening trials and arriving at the main gist of the case.

The witness E. L. Bell was permitted to answer the question, and the record states: “Thereupon introduced the duplicate order which was left with plaintiff by C. W. Daniel, salesman for The Menzies Shoe Company, and also the slip and rider attached thereto.”

Curtis W. Boyce, the credit manager of defendant company, in his deposition, admits that this order and rider was received at the home office at Milwaukee, Wisconsin, on 10 February, and witness (Boyce) identified plaintiff’s- Exhibits 1 and 2, which were correct copies of Exhibits 1 and 2 attached to the deposition, and which carried the rider. Boyce further testified that the traveling salesman had full authority to attach the rider to the order.

The first issue, answered by consent, admits the contract, and the only question was the acceptance. A liberal construction of the answer, and further answer, is to like effect. The sixteenth section of the further answer says: "It is true (italics ours) that the plaintiff company gave to C. W. Daniel, traveling salesman for The Menzies Shoe Company, an order, dated 6 February, 1919, which order was mailed to the factory and was subject to acceptance by the company and satisfactory credit showing on the part of the plaintiff.”

The evidence of A. F. May for plaintiff, and Curtis W. Boyce for defendant, shows that to the order (the first shipment, $93, was sent in April and paid for in June, there was no controversy about) was attached a slip of paper, which was as follows: “We protect you. If we can reduce prices before this order is shipped, we will bill these shoes at the reduced prices. In consideration of this guarantee, no part of this order is subject to cancellation.”

It is a well-settled rule of evidence, subject to certain exceptions, that parol testimony is not admissible to contradict, explain, vary, or add to tbe terms of a written contract. Many authorities, with interesting quotations on this subject, are cited by Walker, J., in Patton v. Lumber. Co., 179 N. C., 103.

This principle does not apply from tbe facts bere. Tbe written evidence was introduced, and tbe admissions all show tbat there was no controversy about tbe terms of tbe contract.

Tbe next main exceptions are to tbe testimony of tbe witness F. L. Bell, and other witnesses for plaintiff, bn tbe question of acceptance of tbe order on tbe second issue.

F. L. Bell was asked: “I will ask you, from your knowledge as a shoe man, bow long is a reasonable time for tbe acceptance or rejectment of an order given under tbe circumstances under which you gave this order?” (Defendant objected; overruled; defendant excepted.) Answer : “About ten days.”

F. L. Bell bad previously stated tbat be was in tbe employ of tbe plaintiff, and, among other things, it was bis duty to buy shoes.

W. J. Batchelor testified tbat be bad been in tbe general mercantile business in Nashville for several years past. He was asked: “You know tbe custom of tbe trade with respect to accepting or rejecting orders?” Answer: “I know our experience.” (Defendant objected; overruled; exception.) Answer:, “From ten to thirty days.”

G-. N. Bissette testified tbat be bad been working in Nashville for about twenty-eight years, and tbat be knew tbe general custom of the trade with respect to accepting or rejecting orders; tbat a reasonable time for a Milwaukee concern to accept or reject an order from a Spring Hope merchant would be twenty days. (This evidence - was not objected to.)

A. M. Baines testified tbat be bad been in tbe mercantile business for about eighteen years, and tbat be knew tbe general custom of trade in regard to time required for accepting or rejecting orders, and tbat it was fifteen to thirty days. (This evidence was not objected to.)

On cross-examination, all these witnesses testified tbat their experience bad been as retaiL'merchants and not as wholesalers and manufacturers of shoes.

There is no exception to tbe testimony of Gr. N. Bissette and A. M. Baines on this evidence as to general custom and trade, with respect to accepting or rejecting orders.

“Appellant is required to set out bis assignments of error in the record, and discuss them in bis brief, or they will not be considered by tbe Supreme Court on appeal, under tbe rules regulating appeals.” Bunn v. Dunn, 185 N. C., 108.

It will be noted tbat Curtis W. Boyce, in bis evidence, stated, without objection: “Tbat in bis office be endeavored to pass on at once orders immediately, and in the event credit could not be extended, customers were notified; however, in connection with future orders, it was not the practice to pass on such orders at once; that there was no special limited time in which the orders should be accepted or rejected; that he had been with The Menzies Shoe Company approximately two years, which was his only experience in the shoe manufacturing business; that he knew of no custom of trade which limited the time for accepting or rejecting orders.”

Albert W. Minton, chief clerk for R. G-. Dun & Co., Milwaukee branch, witness for defendant, without objection, testified: “The length of time to get a report to Milwaukee on a resident of Spring Hope, North Carolina, a small town near the county-seat of Nash County, would depend upon the condition under which the information would have to be obtained, and to see whether the company had a satisfactory report on file — whether the information on file was not sufficiently late to base a report and require a new report. If the case of a customer should show a weak financial condition or representation, his company made an effort to substantiate by a new investigation the report which it had on file, and that necessitates time running all the way from a week to a month or more.”

C. B. Curtis, Milwaukee manager for the Credit Clearing House, a witness for defendant, without objection, testified: “They obtain verified financial statements and trade information from various concerns of whom the party being investigated makes his purchases. These investigations in these services extend all over the United States. It would take, possibly, a month or six weeks to get a report on a Spring Hope merchant to be furnished to a Milwaukee manufacturer.”

Adolph A. Rinker, Bradstreet Company branch agent at Milwaukee, Wisconsin, testified that “It might take a week; it might take a month, and probably longer.”

Elizabeth Stetter, assistant to The Credit Men of The Munn, Buch & Weldon Shoe Company, of Milwaukee, Wisconsin, testified: “To get a report from Spring Hope to Milwaukee it would take from ten to seventy days, depending upon the length of time customers had been in business and their willingness to give information to commercial agencies.”

D. L. Sawyer, a credit manager of a Milwaukee concern, said: “Reports from that section of the country have been delayed from ten to seventy-seven days.”

Further facts, which are undisputed in the record, are: Usually in the spring, orders were given for shoes to be shipped later for fall trade. The bill of shoes was ordered on 6 February, 1919, to be shipped 25 July, 1919. The defendant received the order on 10 February at Milwaukee, Wisconsin, and did not write the plaintiff until 27 June in regard to the order, and in that letter asked for further credit information. They bad four months and seventeen days in which to investigate, to accept or reject the order. The order was cancelled on 25 August, 1919, by defendant, who notified plaintiff in the following letter:

25 August, 1919.

The T. 0. May Co., Spring Hope, N. G.

GeNtlemen : We are in receipt of your letter of 18 August, in regard to the order given our salesman, Mr. Daniel, under date of 6 February.

We enclose a copy of our letter of 30 July, which was a reply to yours of 24 July. Inasmuch as we did not hear from you in reply to this letter, we canceled the order. We could not hold the order longer, with the prices in effect last February.

Tours very truly,

The Menzies Shoe Company.

From the evidence unobjected to, and the undisputed facts, the jury could have answered as they did the second issue “Yes.” “Did the defendant accept the said order and thereby contract to ship the said bill of shoes at price quoted on said date?” The errors complained of, if any, were harmless and not reversible error. Wilson v. Suncrest Lumber Co., ante, 56, and cases cited.

We prefer, however, to consider the law applicable to these exceptions. We have set forth the evidence fully, as this is an important matter. Merchants, in trading with each other, should know their rights and responsibilities. Settled law often has the effect of making people certain and careful in their dealings. . Honesty in dealing with each other at home, with those of other States, and with the nations of the earth, is the golden cord to bind us together. Good faith — keeping of contracts.

When no time is fixed in the contract, as in this case, to accept or reject an order given a salesman, or drummer, the question arises, what is the custom of the trade, or what is reasonable time? .The exceptions that appear in the record will determine what class or kind of evidence is permissible.

We think the evidence admissible. It shows that the men who gave their opinion were merchants of long standing, well acquainted with the custom and usage of the mercantile business. If they could not give their opinion, the hardship would almost be a denial of justice.

“On a question of usage in a particular trade or business, the opinion of persons experienced therein will be received in evidence. ... It is held that a witness is competent to testify as to usage whose only knowledge of it is derived from bis own business, if tbat bas been sufficiently extensive and long continued.” Rogers on Expert Testimony (2d Ed.), sec. 111. Tbe probative weight to be accorded to tbe estimate of witnesses of this kind is entirely a matter for tbe jury.

Tbe exceptions in regard to tbe witnesses testifying to tbe difference in prices 6 February, tbe date of contract, tbe date of tbe receipt of tbe shipments, on tbe third issue as to damages, cannot be sustained. This was a question of fact for tbe jury. If the difference in tbe price on 6 February- and tbe price of tbe shoes actually charged to tbe plaintiff was incorrectly stated by plaintiff’s witnesses, tbe defendant could have introduced evidence to deny tbe same. Tbe judge’s charge on tbe third issue as to damages was clear and explicit, and no exception was taken to it. Tbe record shows no evidence to tbe contrary, and tbe jury bad tbe whole matter before them.

Tbe question of a new contract was left to tbe jury. Tbe judge charged fairly and clearly on this aspect of tbe case, and tbe exception cannot be sustained. It was a question of fact for tbe jury.

Tbe exception to tbe validity of tbe attachment presents tbe most serious question in tbe cause.

We do not think tbat tbe case of Carson v. Woodrow, 160 N. C., 143, cited by defendant, is applicable to this case. In tbat case tbe warrant of attachment was sued out in tbe Superior Court of Nash County and purported to issue to tbe counties of Nash and Edgecombe, and addressed to a constable or other lawful officer of Edgecombe, and executed by a constable in Edgecombe County. Tbe warrant of attachment was in blank, save tbe clerk’s signature attached thereto, affidavits, etc., all in blank, and delivered to plaintiff’s attorney, who filled them in. Tbe act (O. S., sec. 805) says: “Tbe warrant shall be directed to tbe sheriff,” etc. Tbe act was not complied with, in form or substance. Ilolce, J., in tbat case, very properly said: “We are of tbe opinion tbat tbe attachment, writ and seizure of property under it were invalid.” But in Temple v. Hay Co., 184 N. C., 241, Hoke, J., says: “Under tbe statute applicable, the' process of attachment issuing from tbe Superior Court should be addressed to tbe sheriff of tbe county and executed by him or one of bis duly authorized deputies. Carson v. Woodrow, 160 N. C., 144. It appearing, however, that tbe writ was in fact executed by a duly authorized deputy of tbe sheriff, tbe case is well within tbe powers of amendment possessed by tbe court, and which should always be liberally exercised with a view of permitting a determination of tbe cause on tbe real issues involved in tbe controversy.”

Tbe facts are different here. Tbe record shows tbat tbe affidavit bad all tbe formal and substantial facts set forth necessary to obtain a warrant of attachment, and duly verified by F. D. Bissette, who signed his name at the end of the affidavit. At the beginning was the following: “A. F. May, for the T. 0. May Company, of the county of Nash, being duly sworn, says.” This was not sworn to by May, but by Bissette, showing that Bissette, and not May, made the affidavit. This seems to be a patent clerical error. Bissette, later in the cause, as shown by the record* made an affidavit, covering all material allegations necessary to base an order for service of summons' on defendant by publication, which was a reiteration and more contained than in affidavit he made as the basis of the warrant of attachment.

In Sheldon v. Kivett, 110 N. C., 410, Clark, J., said: “In the affidavit by the agent it is not required that the reasons why it was not made by t.he principal should be set out, as in the verification of pleadings.”

The warrant of attachment was issued to the “Sheriff of Nash County.” The warrant of attachment says: "It appearing by affidavit (italics ours) to the officer granting this warrant,” etc.; then comes the usual form and substance in such warrants, signed by the clerk. There are other minor irregularities objected to by the defendants, as appears by the record, but no substantial irregularity as would make the attachment invalid or void.

“The judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading,, process or proceeding by adding or striking out the name of any party; by correcting a mistake in the name of a party, or a mistake in any other respect; by inserting other allegations material to the ease; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved. When the proceeding taken by a party fails to conform to law in any respect, the,trial judge may permit an amendment of the proceeding so as to make it conformable thereto.” C. S., sec. 541.
“The court or judge shall, in every stage of; action, disregard any error or defect in the pleadings or proceedings which do not affect the substantial rights of the adverse party; and no judgment may be reversed or affected by reason of such error or defect.” C. S., sec. 549.

“Where, in an attachment, it appears from the whole record that the statute has been substantially complied with, the action will not be dismissed nor the attachment dissolved.” Best v. Mortgage Co., 128 N. C., 351; Currie v. Mining Co., 157 N. C., 209. See, also, thorough discussion of this whole matter by Walker, J., in Page v. McDonald, 159 N. C., 41, et seq.; Temple v. La Berge, 184 N. C., 253.

On the whole record, we can find

No error.  