Bledsoe v. Coxe Lumber Co Inc

• Decision Date: 04 June 1948
• Docket Number: No. 667.,667.
• Citation: 229 N.C. 128,48 S.E.2d 50
• Court: North Carolina Supreme Court
• Parties: BLEDSOE et al. v. COXE LUMBER CO, Inc., et al.

48 S.E.2d 50

229 N.C. 128

BLEDSOE et al.

v.COXE LUMBER CO, Inc., et al.

No. 667.

Supreme Court of North Carolina.

June 4, 1948.

Appeal from Superior Court, Guilford County; Wilson Warlick, Judge.

Action by T. B. Bledsoe and others, partners, trading and doing business as Brown-Bledsoe Lumber Company, and others against Coxe Lumber Company, Inc., and others, to recover the amount of the judgment secured against the plaintiffs by the Price Administrator allegedly as the result of defendants' failure to properly grade lumber shipped on orders of plaintiffs. From a judgment overruling defendants' demurrer, defendants appeal.

Reversed.

The plaintiffs filed the following complaint:

The plaintiffs, complaining of the defendants, allege:

1. That the plaintiffs are partners trading and doing business under the firm name and style of Brown-Bledsoe Lumber Company, and at all times hereinafter mentioned have been, and are now, engaged in the City of Greensboro, County and State aforesaid, in the business of buying and selling lumber for direct-mill shipment, and at the times hereinafter mentioned were wholesale direct-mill distributors of lumber.

2. That the defendant T. C. Coxe is a citizen and resident of Anson County, North Carolina, and at all times hereinafter mentioned was engaged in the business of manufacturing and selling lumber, with his principal office at Wadesboro, North Carolina, and operating a mill for that purpose at Lilesville, North Carolina, under the trade name and style of Coxe Lumber Company, a mill for that purpose at Mont Clare, South Carolina, under the trade name and style of Coxe Lumber Company, and a mill for that purpose at Camden, South Carolina, under the trade name and style of Wateree Lumber Company.

3. That the defendant Coxe Lumber Company, Inc., is a corporation duly created, organized and existing under the laws of the State of North Carolina, with its principal office and place of business at Wadesboro, Anson County, North Carolina.

4. That the plaintiffs are informed and believe and, upon such information and belief, allege that the defendant Coxe Lumber Company, Inc., during the year 1946, took over the lumber business theretofore conducted by the defendant T. C. Coxe, including the assets thereof, and also became liable for the debts and obligations of said T. C. Coxe in and about said lumber business.

5. That from November 3, 1943, to June 14, 1944, the plaintiffs received orders from various customers for Southern Pine Lumber which they placed with the defendant T. C. Coxe, trading as Coxe Lumber Company, to be filled by him, and that the defendant T. C. Coxe shipped the lumber to consignee designated by the plaintiffs, billing the same to plaintiffs and receiving payment therefor from plaintiffs in accordance with invoices furnished by said Coxe to the plaintiffs, and that thereupon the plaintiffs invoiced the shipments to its customers in accordance with the invoices received from said Coxe, as to quantities and grades of lumber contained in said shipments, at proper maximum prices for said quantities and grades.

6. That at all times herein mentioned prior to February 4, 1944, there was in effect Revised Maximum Price Regulation No. 19 (8 F.R. 5536), issued by the Price Administrator of the Office of the Price Administration pursuant to 50 U.S.C.A. Ap-pendix, § 901 et seq., establishing maximum prices for the purchases, sales and deliveries of Southern Pine Lumber for direct-mill shipment.

7. That at all times herein mentioned since February 4, 1944, there was in effect Second Revised Maximum Price Regulation No. 19 (9 F.R. 1162), issued by the Price Administrator of the Office of Price Administration pursuant to 50 U.S.C.A. Appendix, § 901 et seq., establishing maximum prices for the purchases, sales and deliveries of Southern Pine Lumber for direct-mill shipment.

8. That under said regulations all shipments of Southern Pine lumber made by said Coxe during the period above alleged were required to be graded by a competent inspector and the applicable maximum prices charged by him for the quantities and grades contained in said shipments, and that under said regulations a shipment of lumber containing more than one gradeof lumber, or a combination of grades, could not be sold at prices higher than the maximum price for the lowest grade of lumber contained in said shipment unless lumber of each grade was actually graded and tallied on a board foot basis and invoiced separately at prices not in excess of ceiling prices for the respective grades.

9. That the aforesaid shipments of lumber by the defendant T. C. Coxe to the customers of the plaintiffs were invoiced to the plaintiffs by said Coxe, with quantities and grades shown on the invoices and with proper maximum prices for the quantities and grades shown thereon, and were invoiced by plaintiffs to their customers in the same manner with proper maximum prices for the quantities and grades shown on the invoices, with a 6% commission added as provided by said regulations.

10. That the plaintiffs never saw or inspected any of the lumber shipped by Coxe to their customers aforesaid, and relied upon invoices and inspection certificates received by them from said Coxe in selling and invoicing said lumber to their customers.

11. That the shipments of Southern Pine Lumber made by the defendant T. C. Coxe to the customers of the plaintiffs during the period above alleged which contained more than one grade of lumber, or were combination grade shipments, were either not actually graded by said Coxe, or if graded they were invoiced by him without regard to the different grades of lumber in said shipments on an arbitrary percentage basis in violation of said regulations.

12. That on November 2, 1944, an action was instituted in the District Court of the United States for the Middle District of North Carolina, Greensboro Division, entitled "Chester Bowles, Administrator, Office of Price Administration, Plaintiff, vs. T. B. Bledsoe, Greensboro, North Carolina; Mrs. Maude G. Bledsoe, Greensboro, North Carolina; Margaret G. Bledsoe, Washington, D. C.; Jeanette B. Bledsoe, Greensboro, North Carolina; Individually and Doing Business as Brown-Bledsoe Lumber Company, Greensboro, North Carolina, Defendants, " and that in said ac tion on January 24, 1946, judgment was rendered against these plaintiffs for the sum of $19,289.55, and costs, solely by reason of the unlawful and wrongful failure of the defendant T. C. Coxe to grade or properly grade the combination grade shipments of lumber above alleged. That cross-appeals were taken from said judgment and on January 8, 1947, the United States Circuit Court of Appeals for the Fourth Circuit, Porter v. Bledsoe, 159 F.2d 495, affirmed the judgment of the District Court assessing damages of $19,289.55 and costs against these plaintiffs as aforesaid, and remanded the case to the District Court to enter judgment against the plaintiffs for the amount of overcharges in respect to ten cars of combination grade Southern Pine Lumber shipped by the said T. C. Coxe to D. Ginsberg & Sons, Corona, New York, in January and February, 1944, on orders of these plaintiffs, in the manner above alleged, in respect to which shipments the said T. C. Coxe furnished to these plaintiffs invoices and certificates of inspection, and which said shipments were either not actually graded by said Coxe or if graded they were invoiced by him and certificates of inspection furnished by him without regard to the different grades of lumber in said shipments on an arbitrary or fictitious percentage basis in violation of said regulations, and that in said action, pursuant to the mandate of the United States Circuit Court of Appeals for the Fourth Circuit, judgment was entered against these plaintiffs in the said United States District Court on February 19, 1947, for the sum of $3,605.53, for overcharges in respect to said ten cars of lumber, solely by reason of the aforesaid wrongful and unlawful violation of said regulations by the defendant T. C. Coxe.

13. That the defendant T. C. Coxe had full notice and knowledge of said action and testified as a witness during the trial thereof.

14. That on January 14, 1947, these plaintiffs paid the first judgment aforesaid and interest therein in the sum of $20,-446.92, and that on February 21, 1947, they paid the second judgment aforesaid and the costs of said action in the sum of $3,738.23.

15. That plaintiffs have also paid attorney's fees and other reasonable and necessary expenses in making their defense in said action in the sum of $4,252.-43, all of said payments having been made on or before February 21, 1947.

16. That by reason of the matters and things above alleged the defendants are indebted to the plaintiffs in the sum of $28,-437.58, with interest on $20,446.92 at the rate of 6% per annum from January 14, 1947, and with interest on $7,990.66 at the rate of 6% per annum from February 21, 1947.

Wherefore, plaintiffs pray that they recover of and from the defendants, jointly and severally, the sum of $28,437.58, with interest on $20,446.92 at the rate of 6% per annum from January 14, 1947, and with interest on $7,990.66 at the rate of 6% per annum from February 21, 1947, together with the costs of this action.

The defendants interposed a written demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. G.S. § 1-127. The court below overruled the demurrer, and the defendants appealed, assigning such ruling as error.

Hines & Boren and R. M. Robinson, all of Greensboro, for plaintiffs, appellees.

Fred J. Coxe, of Wadesboro, and J. C. Sedberry, of Charlotte, for defendants, appellants.

ERVIN, Justice.

This appeal calls to mind the ancient admonition that hard cases form the quicksands of the law.

Congress adopted the Emergency Price Price Control Act of 1942 as a temporary wartime measure "to stabilize priced and to prevent...