Lamborn & Co. v. Hollingsworth & Hatch

• Decision Date: 21 March 1928
• Docket Number: 102.
• Citation: 142 S.E. 19,195 N.C. 350
• Parties: LAMBORN & CO. v. HOLLINGSWORTH & HATCH.
• Court: North Carolina Supreme Court

142 S.E. 19

195 N.C. 350

LAMBORN & CO. v. HOLLINGSWORTH & HATCH.

No. 102.

Supreme Court of North Carolina

March 21, 1928

Appeal from Superior Court, Chatham County; Grady, Judge.

Action by Lamborn & Co. against Hollingsworth & Hatch. Judgment for plaintiff, and defendants appeal. No error.

Interrupting counsel's argument characterizing plaintiff's conduct as actuated by avarice and greed and contract as unconscionable and oppressive held not abuse of discretion.

On June 4, 1920, the plaintiff, Lamborn & Co., sold to the defendants by written contract:

"75 barrels standard fine granulated sugar on the basis of 26 cents per pound, f. o. b. Savannah Refinery, Port Wentworth, Ga., for fine granulated. Shipments to be made as follows: One-third during June or July; one-third during August or September; one-third during September or October if possible. Shipment at seller's option during period specified, subject to delay, if any."

This contract was signed by the defendant as Sanford, N. C., and forwarded to plaintiff at Savannah, Ga., by mail. The letter forwarding the contract stated: "You will find inclosed signed contract for 75 barrels Standard fine granulated sugar," etc. On June 24, 1920, plaintiff shipped to the defendants 24 barrels of sugar. This shipment of 24 barrels was accepted by the defendant without objection and paid for. On August 7, 1920, plaintiff shipped to the defendant 25 barrels of sugar, which was accepted without objection and paid for. On October 9, 1920, the plaintiff shipped to the defendant 26 barrels of sugar. In the meantime the price of sugar had greatly declined. The defendant refused to accept the 26 barrels, contending that the shipment contained one barrel too many, for that the allocation under the contract for September or October shipment was one-third of the total or 25 barrels. The plaintiff contended that the 26 barrels was the amount necessary to complete the contract, and that under the agreement the defendant had purchased 75 barrels of sugar and that shipment was at seller's option. The defendants refused to accept the sugar unless the plaintiff would deduct the price of one barrel. Thereupon the plaintiff notified the defendants that it would resell said sugar and charge the defendants with the difference. On October 28th the plaintiff notified the defendants that it had received an offer of 11 cents for said sugar, and that said offer was the best that could be obtained, and that unless defendants should furnish a better offer by 10 a. m. October 29, 1920 they would sell the sugar at the price offered and hold the defendants liable for the difference between the contract price and the price obtained on resale, together with such other losses and expenses as the plaintiff would sustain by reason of the breach of contract. The defendants did not reply to this communication, and on October 30, 1920, plaintiff sold the sugar to one Bobbitt in Sanford at a loss of $1,428.56. Included in this total loss were certain small items of expense for storage and telegrams, amounting to $46.11. All the evidence tended to show that the price of the sugar upon the resale to Bobbitt was the fair market value of sugar on the date of resale. The plaintiff made demand upon the defendants for the sum of $1,428.56, and, upon refusal to pay, suit was instituted. There was a verdict for $1,428.56 in favor of plaintiff, and from judgment upon the verdict the defendants appealed.

Seawell & McPherson and Williams & Williams, all of Sanford, for appellants.

Biggs & Broughton, of Raleigh, for appellee.

BROGDEN J.

The record discloses during the course of argument of counsel for defendants to the jury, counsel characterized the conduct of the plaintiff as being actuated by "avarice and greed" and referred to the contract as "unconscionable and oppressive," with other comments of like tenor. The court, being of the opinion that neither the allegations in the answer nor proof offered in the case supported such argument, interrupted counsel with the statement that "the argument you are now making has nothing to do with the case."

The defendants excepted.

At the conclusion of all the argument, counsel for defendant handed up what purported to be a statement of the argument he was making or purporting to make when interrupted by the court. The court thereupon stated to counsel that he could read the statement to the jury or proceed to make his argument to the jury as he had intended. Counsel declined to do either. Defendants excepted.

Under our law it is the undoubted right of counsel to argue every phase of the case supported by the evidence without fear or favor and to deduce from the evidence offered all reasonable inferences which may flow therefrom. The testimony and conduct of witnesses and parties must at all times be subject to such criticism and attack as the circumstances reasonably justify. However, the baiting and badgering of witnesses and parties ought not to be permitted by the court. Parties come into court, as they have a right to do, to have controversies determined according to the orderly...