Erskine v. Chevrolet Motor Co.

• Court: North Carolina Supreme Court
• Writing for the Court: CLARKSON, J.
• Citation: Erskine v. Chevrolet Motor Co., 187 N.C. 826, 123 S.E. 193 (N.C. 1924)
• Decision Date: 31 May 1924
• Docket Number: 550.
• Parties: ERSKINE ET AL. v. CHEVROLET MOTOR CO. ET AL.

123 S.E. 193

187 N.C. 826

ERSKINE ET AL.
v.
CHEVROLET MOTOR CO. ET AL.

No. 550.

Supreme Court of North Carolina

May 31, 1924

Appeal from Superior Court, Buncombe County; Ray, Judge.

Action by J. V. Erskine and others, individually and as partners, doing business as the Erskine Motors Company, and another, against the Chevrolet Motors Company and another. Judgment for plaintiffs, and defendants appeal. New trial.

In motor company's action against automobile company for breach of contracts for automobiles, where there was a material issue, evidence as to whether agencies at A. and H. were to be handled separately or together held to call for instruction thereon.

Merrimon, Adams & Johnston, of Asheville, and Frank A. Gaynor, of New York City, for appellants.

Mark W. Brown, of Asheville, for appellees.

CLARKSON, J.

This case has been here twice before, the first time on the right of removal to the federal court. 180 N.C. 619, 105 S.E. 420. The second time the judgment of nonsuit in the court below was reversed. 185 N.C. 479, 117 S.E. 706. It is with reluctance that we feel compelled to grant a new trial in the present case.

It is alleged by plaintiff that--

"On or about December 1, 1919, the plaintiffs, after considerable negotiations with the defendants, entered into contracts by which plaintiffs became the representatives of the defendants at Asheville and Hendersonville for the sale of Chevrolet automobiles, motor trucks, parts, accessories and supplies, and it was at that time understood and agreed that plaintiffs would handle said automobiles, motor trucks, parts, accessories and supplies at Hendersonville for the reason that plaintiffs were to handle the same automobiles, motor trucks, parts, accessories and supplies at Asheville, said Hendersonville representation being a part of one and the same business to be conducted by plaintiffs at both places, and under the names aforesaid; and pursuant to said arrangement plaintiffs and defendants entered into articles of agreement, marked Exhibits 'A' and 'B,' respectively.

That pursuant to said articles of agreement marked 'A,' the plaintiffs gave and the defendants accepted 'shipping orders' for delivery at Asheville of 152 Chevrolet automobiles and motor trucks, as will better appear by reference to said shipping order, marked Exhibit 'C,' the same being subject to the terms and conditions of the price list furnished by the defendants to plaintiffs.

That pursuant to said articles of agreement marked Exhibit 'B,' the plaintiffs gave and the defendants accepted shipping order for the delivery at Hendersonville of 55 Chevrolet automobiles and motor trucks, as will better appear by reference to said shipping order marked Exhibit 'D,' the same being subject to the terms and conditions of the price list furnished by the defendants to plaintiffs.

That the plaintiff went to great expense in making preparations to handle said Chevrolet automobiles, motor trucks, parts, accessories and supplies after said contracts had been entered into between plaintiffs and defendants as aforesaid, and while plaintiffs were engaged in advertising said automobiles and motor trucks in the counties of Buncombe, Madison, Yancey and Henderson, as provided in said contracts, plaintiffs were made aware that efforts were being made to induce the defendants to cancel said contracts with plaintiffs and said shipping orders which defendants had accepted from plaintiffs, and plaintiffs forthwith notified defendants that they...