RILEY t. CARPENTER,

to be considered in assessing the damages resulting from a broken covenant. The evidence and charge as to the actual success of the company were calculated to mislead the jury and produce a wrong appraisement of the value of the stock, and one that would necessarily increase the value of the Mountain Island tract of land, the title to which had proved to be defective.

There was error in the respect indicated, for which a new trial is ordered, but it will be restricted to the fourth and seventh issues as to damages, the seventh issue being included, as the amount awarded, in response to that issue, was made by the jury a part of the damages assessed under the fourth issue. The appellee will pay the costs of this Court. New Trial.

RILEY v. CARPENTER.

(Filed December 4, 1906).

Sales-Performance of Contract-Measure of Damages for Breach-Substantial Performance.

1. A contract for the sale and delivery of yarns, in which it was stipulated that bills of lading were to be sent direct to the buyer and upon receipt of the goods he was to remit to the seller, was not substantially performed when the seller shipped the goods with bill of lading attached, and the buyer was justified in not receiving them, and is entitled to recover as damages the difference between the contract price and what it reasonably cost him on the market to supply the goods.

2. One who invokes the doctrine of substantial performance in order to show a right to recover on a contract, must present a case in which there has been no wilful omission or departure from the terms of the contract.

ACTION by Charles E. Riley against D. J. Carpenter, heard by Judge Charles M. Cooke and a jury, at the May Term, 1906, of the Superior Court of CATAWBA.

RILEY V. CARPENTER.

This was a civil action on contract for sale and delivery of a certain quantity of yarn. Defendant admitted the amount claimed by plaintiff, but set up a counter-claim for damages by reason of an alleged breach of the contract on the part of plaintiff in failing to deliver the remainder of the yarn contracted for. The jury answered the issue on the counterclaim against defendant, and to his Honor's instructions, the verdict and judgment thereon, defendant excepted and appealed.

Self & Whitener for the plaintiff.

W. C. Feimster and M. H. Yount for the defendant.

BROWN, J. The Court charged that "If plaintiff shipped the goods with bill of lading attached, and defendant could have gotten the goods by calling at the depot and paying for the yarn, that would be a substantial compliance with the contract, and if you find from the evidence that this is true, you will answer the second issue 'No.'"

In this we think there was error. The contract that bills of lading were to be sent direct to the defendant, and upon receipt of the goods he was to remit to the plaintiffs, was not performed when the plaintiffs billed the goods to themselves with draft attached. It was not a substantial compliance with the contract, but a wilful violation of it. The defendant had the right to insist upon such a contract, and the plaintiffs need not have agreed to it, but having agreed to it, they should have performed it. If the defendant's credit had become impaired and his solvency seriously doubted, the plaintiffs could have refused to ship the goods, and should then have notified the defendant of the reason. There is nothing of that sort in the case. The defendant may have thought, and with some reason, that if all his goods were shipped c. o. d. it would impugn his credit, and for that reason insisted as a part of the contract upon direct shipments. One who invokes the

RILEY v. CARPENTER.

doctrine of substantial performance in order to show a right to recover on a contract, must present a case in which there has been no wilful omission or departure from the terms of the contract; he must have faithfully and honestly endeavored to perform it in all particulars. To justify a recovery upon a contract as substantially performed, the omission must be the result of a mistake or inadvertence and not intentional. Elliott v. Caldwell, 9 L. R. A., 53, and cases cited.

If the evidence of the defendant is to be believed, the departure from the alleged contract was intentional. He says: "I told them when we talked of the modification of this contract, and as a part of the modification and understanding, it was agreed that no goods were to be shipped to me with bill of lading attached. I expressly told Corbett that I never received or had goods shipped to me with bill of lading attached, and I would not receive any goods that way, and they were not to be shipped to me under the modified terms in any such manner, but bills of lading and invoices were to be sent direct to me, and upon receipt of the goods I was to remit to Riley & Co., Boston, Mass." As the terms of the modified contract do not seem to be in dispute, we are of opinion that the plaintiffs violated it when they shipped the goods c. o. d., and that the defendant was justified in not receiving them, and that the defendant is entitled to recover, as damages, the difference between the contract price and what it reasonably cost the defendant on the market to supply the yarns which plaintiffs failed to supply.

Let there be a new trial upon the second and third issues. New Trial.

HOKE, J., did not sit on the hearing of this case.

In re SHELTON'S WILL.

IN RE SHELTON'S WILL.

(Filed December 4, 1906).

Wills Revocation-Declarations of Testator-Evidence— Handwriting-Comparison-Argument of Counsel-Exceptions Burden of Proof as to Revocation--Harmless Error-Ambiguous Verdict.

1. A cancellation, obliteration or erasure made after the execution of a will, which does not in fact destroy some portion of the material substance of the will, does not constitute a revocation thereof.

2. To constitute a valid revocation of a will within the language of Rev., sec. 3115, it is essential, among other requirements, that the entire writing, including the signature, should be in the testator's handwriting, where it is not attested by witnesses.

3. Declarations of the testator made after the date of an alleged revocation written on the margin of the will, tending to prove that he did not write or execute the alleged revocation, were competent.

4. In a proceeding for the probate of a will, on the margin of which was written an alleged revocation by the testator, where it was admitted to be the testator's will unless it had been revoked by the words written on its margin, declarations by the testator as to how he was going to leave his property, made before the date of the alleged revocation, were not competent.

5. The declarations of the testator may not be received to explain, change or add to a written will, nor can it be revoked by parol.

6. While it was erroneous for counsel for the propounder of a will, in his argument, to show the alleged revocatory words on the margin of the will to the jury and point out differences in the formation of letters, etc., between the signature on the margin and the signature to the will, it does not constitute reversible error where the contestant failed to call the Court's attention to it and took no excep tion at the time.

7. In a proceeding for the probate of a will, on the margin of which was written an alleged revocation, after the propounder offered the will and proved its due execution, the burden of proving that the will had been legally revoked was upon the contestant.

8. Where the Court erroneously put upon the propounder of a will the burden of proving that an alleged revocation of a will was not

In re SHELTON'S WILL.

genuine, the contestant, at whose request it was done, cannot complain.

9. In a proceeding for the probate of a will, where the usual issue was submitted to the jury, "Is the paper-writing propounded for probate, and every part thereof, the last will and testament of deceased?" to which the jury answered, "Yes," the verdict was not ambiguous because the will bore on its margin an alleged revocation, as the marginal words were no part of the will.

PROCEEDING heard by Judge Henry R. Bryan and a jury, in the Superior Court of LINCOLN, wherein A. F. Shelton appeared as propounder for probate of a paper-writing as the last will of F. M. Shelton, who died on 25 January, 1905, and the administrator of the estate of F. M. Shelton appeared to contest the probate.

The paper-writing executed by F. M. Shelton in 1902 was offered in evidence as his will. The following words were written in ink on the margin thereof, to-wit:

"This will I this day make void and of no effect. January 16, 1905. F. M. SHELTON."

was that said words re

The contention of the contestant voked the paper-writing as a will. Evidence was introduced by the propounder and contestant. Many exceptions were taken by contestant to the admission and exclusion of testimony, to the charge of the Court and other rulings of his Honor.

The following issue was submitted to the jury: "Is the paper-writing propounded for probate, and every part thereof, the last will and testament of F. M. Shelton ?" to which the jury answered "Yes." Upon this verdict the Court gave judg ment that the paper-writing, excluding the words on the nargin thereof, was the last will and testament of F. M. Shelton. The caveator appeals.

Clarkson & Duls, Tillett & Guthrie, and C. E. Childs, for the propounder.

Ruffin & Preston for the caveator.