23 S.E. 173 (N.C. 1895), Faucette v. Ludden

Citation:23 S.E. 173, 117 N.C. 170
Opinion Judge:MONTGOMERY, J.
Party Name:FAUCETTE v. LUDDEN et al.
Attorney:Shepherd, Manning & Foushee and Perrin Busbee, for appellants. Boone, Merritt & Bryant, for appellee.
Case Date:November 05, 1895
Court:Supreme Court of North Carolina
 
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Page 173

23 S.E. 173 (N.C. 1895)

117 N.C. 170

FAUCETTE

v.

LUDDEN et al.

Supreme Court of North Carolina

November 5, 1895

Appeal from superior court, Durham county; Greene, Judge.

Action by E. W. Faucette against Ludden & Bates to recover commissions on sales by plaintiff's assignor. From a judgment for plaintiff, defendants appeal. Affirmed.

In an action to recover commissions on sales, defendants set up a counterclaim, alleging that M., plaintiff's assignor, had violated a provision of his contract that "consignee shall diligently push the sale of said instruments, * * * and will not sell, deal in, or be concerned in the sale of any piano or organ" except defendants'. It was proved that M. sold three instruments for other dealers, on which he made a profit of $220, but it appeared that he could not have sold defendants' instruments to such purchasers, and there was nothing to show that he had neglected defendants' business. Held that, no damages having been proven, defendants could not recover for M.'s breach of contract.

Page 174

Shepherd, Manning & Foushee and Perrin Busbee, for appellants.

Boone, Merritt & Bryant, for appellee.

MONTGOMERY, J.

The contract between the plaintiff's assignor and the defendants obligated him to sell musical instruments for them, and not to sell any pianos or organs except those of the defendants, and to receive his remuneration in commissions on the sales. The goods were consigned to the plaintiff's assignor in Durham, and kept by him in his own sales rooms. After the contract was terminated, the plaintiff's assignor claimed that the defendants owed him, under its terms, a specified amount as commissions on sales made by him, and sold and assigned in writing to the plaintiff. The defendants having refused to pay the amount, the plaintiff brought this action to recover it. The defendants deny the material allegations of the complaint, and set up a further defense, in the nature of a counterclaim, in which they aver that the plaintiff's assignor violated his contract with them, in that he sold, during the continuance of the contract, pianos and organs other than those of the defendants, and received commissions on such sales; and they aver their damages to be $500, and demand an absolute judgment for that amount against the plaintiff. At the trial term an order of reference was made to W. A. Guthrie, referee, "to...

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