Hunsucker v. Corbitt

• Decision Date: 02 April 1924
• Docket Number: 161.
• Parties: HUNSUCKER ET AL. v. CORBITT ET AL.
• Court: North Carolina Supreme Court

122 S.E. 378

187 N.C. 496

HUNSUCKER ET AL. v. CORBITT ET AL.

No. 161.

Supreme Court of North Carolina

April 2, 1924

Appeal from Superior Court, Pitt County; Horton, Judge.

Action by R. H. Hunsucker and R. T. Cox, trading as the A. G. Cox Manufacturing Company, against R. J. Corbitt and others. Judgment for plaintiffs, and defendants appeal. No error.

Stacy J., dissenting.

Where a seller of automobiles sent its agents to close a contract of sale with a prospective purchaser, held that the representations and warranties of such agent as to the automobile were in the scope of their employment and binding on seller, under the rule that the power to sell usually includes the power to make such warranties as are customary in the particular place and business.

The plaintiffs allege: That they are partners engaged in the business of buying and selling automobiles, and that the defendant Corbitt Buggy Company is a corporation, chartered under the laws of North Carolina, and engaged in the business of manufacturing, selling, and distributing automobiles throughout the state of North Carolina, and at the time hereinafter set forth was engaged in selling Argo automobiles, with the exclusive right to appoint agents for said car in the state. That on or about May 3, 1916, the defendant entered into a contract with plaintiff to purchase 25 Argo cars and have exclusive right for Pitt county. Prices of the different cars were fixed in the contract, and the contract to remain in full force and effect until July 21 1917. The privilege was to order the 25 cars from time to time during the existence of the contract. "The plaintiffs entered into said contract in consideration of the representations, warranties and guaranties then and there made to them by the defendant that said cars were 'right mechanically and artistically, and were dependable efficient, economical, durable and suitable for the purposes for which they were intended, to wit, operation and traffic upon the roads of Pitt county and elsewhere,' representing and guaranteeing that said automobiles were built of the best material, of standard equipment, and in further consideration of the assurance by the defendant that it would make good any deficiency or deficiencies that might develop in said cars on account of any inherent defects therein." That in consideration of the stipulations, warranties, and guaranties, etc., the plaintiff paid defendant $125 and made an order for 6 Argo cars at a cost to them f. o. b. the factory of $2,335, which they received and paid for. That after the receipt of the cars they proceeded to put them on the market, under the same warranties, etc., that they had taken from defendant. That the cars proved to be worthless, unfit for service, and mere junk, and not up to guaranty, and plaintiffs had to protect their guaranty and refund to purchasers the purchase price received for the cars. That they made demand on defendants to make good the warranty, which they failed to do. That by reason of the breach of contract they were damaged for loss of profits, extra labor, and material in trying to make the cars good, etc., and amount paid for cars, in the total sum of $3,438.94. "That an action was originally instituted against the defendant herein on the 13th day of March, 1917, which said action was nonsuited at the _____ term, 1920, of Pitt superior court; said action having been instituted to recover of the defendant the damages as above set forth."

The defendant Corbitt Buggy Company answers and denies that it made any contract with plaintiffs, and whatever contract was made it was entered into by plaintiffs with the Argo Motor Company and the Hackett Motor Car Company, the successor to the business and contracts of the Argo Motor Company. That in a former suit brought by plaintiffs against the Corbitt Buggy Company, R. G. Corbitt, and the Hackett Motor Car Company, the plaintiffs set forth in their complaint:

"That the defendant the Hackett Motor Car Company is a corporation with central office in Jackson, Mich., organized and existing under the laws of the state of Michigan, and as such is the successor to the business and contracts of the Argo Motor Company, with whom the plaintiffs made this contract, a corporation which originally manufactured what is known as the Argo motor car or automobiles, and afterwards sold and transferred all of its rights, contracts, responsibilities, and property to the Hackett Motor Car Company, who have accepted and assumed the same, among them being the plaintiffs' contract."

That the plaintiffs attached to the complaint in that action, and upon which this action is based, their agreement with the Argo Motor Company. The Corbitt Buggy Company denies that any representations, guaranties, or warranties, etc., were made by it. That the only contract plaintiffs made was with the Argo Motor Company, or its successor, the Hackett Motor Car Company. It denies that it owes plaintiffs anything. It further says:

"That an action was originally instituted against this answering defendant and R. J. Corbitt individually, and the Hackett Motor Car Company, in the superior court of Pitt county, on the 13th of March, 1917, and that said action was nonsuited at the March term, 1920, of Pitt superior court, Hon. G. W. Connor, Judge Presiding. That it is admitted that this action was instituted against this answering defendant by the issuance of a summons from the superior court of Pitt county, on the 5th day of May, 1920, and that the same was served on the defendant Corbitt Buggy Company on the 10th of May, 1920."

For a further defense, the Corbitt Buggy Company says:

"That the plaintiff should not have or maintain this action against this defendant for the reason that more than three years have elapsed since the alleged cause of action of the plaintiff against this defendant accrued, and this defendant pleads said lapse of time in bar of any recovery in this action. That this defendant in no wise warranted or became responsible in any manner to the plaintiff by reason of the plaintiff's contract with the Argo Motor Company, and, on the contrary, this defendant acted only as the distributor for the Argo Motor Company, and this defendant denies that it in any wise contracted with the plaintiff for the delivery of automobiles, but that the contract complained of was entered into between the plaintiff and the Argo Motor Company, and this defendant is in no wise responsible for any alleged deficiency which may have arisen by reason of said contract, and in no wise warranted or assumed any obligation concerning the said contract. Wherefore, having fully answered, this defendant prays that it go hence without day and recover its costs."

After the jury has been duly impaneled, the defendant Corbitt Buggy Company moved for judgment as of nonsuit for that the plaintiffs' alleged cause of action is barred by the three-year statute of limitations, as appears from the pleadings, and for that the plaintiff had not paid the cost in a prior suit between the same parties upon the same alleged cause of action before the bringing of the present action; and the defendants R. J. Corbitt, N.H. Carter, and M. W. Teachy demurred to the complaint for that no cause of action was alleged in the complaint as to either of the last-named defendants. The court sustained the demurrer of the defendants R. J. Corbitt, N.H. Carter, and M. W. Teachy, and dismissed the action as to them. It is immaterial, but the record shows no service of process on the defendant Hackett Motor Car Company.

The following issues were submitted to the jury and their answers thereto:

"(1) Did the plaintiff execute the contract for the purchase of 25 automobiles referred to in the pleadings, upon the representations and warranties of the defendant (Corbitt Buggy Company) as alleged in the complaint? Answer: Yes.

(2) Were said representations and warranties false as alleged in the complaint? Answer: Yes.

(3) If so, what damages is plaintiff entitled to recover of the defendant? Answer: $3,000. No interest.

(4) Is plaintiff's cause of action barred by the statute of limitations? Answer: No."

The exceptions and assignments of error of defendant are 56 in number. The material ones and facts necessary for the decision of the case will be considered in the opinion.

Lewis G. Cooper and Skinner & Whedbee, all of Greenville, for appellants.

S. J. Everett and Albion Dunn, both of Greenville, for appellees.

CLARKSON J.

The defendants' first grouping of assignments of error relates to exceptions 1 and 55:

"The court committed error in overruling the motion made by the defendant Corbitt Buggy Company for a judgment as of nonsuit, for that the plaintiffs' alleged cause of action is barred by the three-year statute of limitations, as appears from the pleadings, and for that the plaintiffs had not paid the costs in a prior suit between the same parties upon the same alleged cause of action before bringing the present action."

"The court charges you, if you believe all the evidence, you will answer that issue (fourth issue), 'No.' "

That issue is as follows: "Is plaintiffs' cause of action barred by the statute of limitations?"

These exceptions raise the plea of the statute of limitations. This defense, three years' statute of limitations, was set up in the answer. If the position of defendant can be sustained, the plaintiffs cannot recover.

An action was brought by plaintiffs against R. J. Corbitt individually, Corbitt Buggy Company, and the Hackett Motor Car Company, in the superior court of Pitt county on March 13, 1917, and this action was nonsuited at the March term, 1920, of Pitt county. The present action was commenced May 5, 1920, and the...