Florsheim Shoe Co. v. Leader Department Store, Inc.
Decision Date | 22 September 1937 |
Docket Number | 104. |
Citation | 193 S.E. 9,212 N.C. 75 |
Parties | FLORSHEIM SHOE CO. v. LEADER DEPARTMENT STORE, Inc. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; J. H. Clement, Judge.
Action by the Florsheim Shoe Company against the Leader Department Store, Inc., wherein defendant set up a cross-action and counterclaim. Judgment for defendant, and plaintiff appeals.
Reversed.
The plaintiff instituted the action in the general county court of Buncombe county to recover upon an open account for merchandise and for the value of an electric sign. The defendant admits the plaintiff's account and the value of the electric sign was agreed upon. In its answer the defendant set up a cross-action and counterclaim, alleging damages arising from the breach of a contract, under the terms of which the plaintiff granted the defendant an exclusive agency in Asheville to sell plaintiff's nationally known and advertised "Florsheim Shoes."
Verdict and judgment in favor of the defendant, and the plaintiff assigning errors, appealed to the Superior Court.
The court below, overruling the plaintiff's exceptive assignments of error, affirmed the judgment of the general county court, and the plaintiff appealed.
Hedrick & Hall, of Durham, and J. G. Merrimon and Chas. G. Lee, Jr. both of Asheville, for appellant.
Williams & Cocke, of Asheville, for appellee.
The evidence discloses that from 1921 until the spring of 1935 plaintiff sold its shoes in Asheville exclusively to S. I Blomberg and his successor, the Leader Department Store, Inc. In the spring of 1935 plaintiff procured another dealer in the town of Asheville and discontinued sales to the defendant. The defendant contends, and the jury found, that the sales of the Leader Department Store, Inc., and its predecessor were made under a contract of exclusive agency. The plaintiff denied the contract and contended that it discontinued sales to the defendant for the reason that the defendant did not pay its bills promptly and at times became heavily indebted to the plaintiff.
The contract relied upon by the defendant was testified to by S I. Blomberg as follows:
Is the contract, which the evidence of the defendant tends to establish, void for that it violates subsection 2 of C.S. § 2563, or does subsection 6 thereof apply? If it is a contract prohibited by subsection 2, it is unlawful and unenforceable. If subsection 6 is the pertinent provision of the statute, an intent to stifle competition must appear in order to defeat a recovery by defendant. Upon the question as to whether the defendant's counterclaim should have been dismissed as of nonsuit, these subsections constitute the battleground between the parties. The rights of the parties in this particluar are to be determined by an interpretation and application of the evidence in relation to these two subsections in the light of the decisions of this court in Standard Fashion Company v. Grant, 165 N.C. 453, 81 S.E. 606, and in Mar-Hof Company v. Rosenbacker, 176 N.C. 330, 97 S.E. 169, 170.
C.S. § 2563, is the codification of chapter 41, section 5, Public Laws 1913, and provides: "In addition to the matters and things hereinbefore declared to be illegal, the following acts are declared to be unlawful, that is, for any person firm, corporation, or association directly or indirectly to do or to have any contract, express, or knowingly implied, to do any of the acts or...
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