Penn-allen Cement Co. Inc v. Sutherland, (No. 413.)

• Citation: 109 S.E. 257
• Decision Date: 16 November 1921
• Docket Number: (No. 413.)
• Court: United States State Supreme Court of North Carolina
• Parties: PENN-ALLEN CEMENT CO.. Inc. v. PHILLIPS & SUTHERLAND.

109 S.E. 257

PENN-ALLEN CEMENT CO.. Inc.
v.
PHILLIPS & SUTHERLAND.

(No. 413.)

Supreme Court of North Carolina.

Nov. 16, 1921.

[109 S.E. 257]

Appeal from Superior Court, Scotland County; Kay, Judge.

Action by the Penn-Allen Cement Company, Inc., against Phillips & Sutherland. From act of court in adjudging that plaintiff recover certain sums on two causes of action and retaining a third cause for trial, defendants appeal. Appeal dismissed.

This is an action to recover the price of four carloads of cement. There are three causes of action stated in the complaint. On September 17, 1920, the plaintiff shipped the defendants one carload, 231 barrels of cement, at $6.09 per barrel, less freight and war tax, making $1,039.03, which amount was paid to the plaintiff by the defendant. On September 18, 1920, the defendants sent the plaintiff a telegram to ship them two more carloads of 231 barrels each, which were received by the defendants, for which the plaintiff now seeks to recover $2,079.87 in his first cause of action. On September 27, 1920, the plaintiff shipped another carload of cement, which contained 231 barrels, which at the same price amounted to the sum of $1,039.26 and is the plaintiff's second cause of action, and another carload of 289 barrels, which the defendants refused to accept, was the third cause of action. The defendants based their refusal upon the ground that the shipment of 289 barrels was in excess of the 231 barrels which they had ordered, and, further, because they allege that they had ascertained that the plaintiff had discriminated in the price of said cement, in that it had charged the defendants $1.10 per barrel more for said cement than it had charged other purchasers within the United States, in violation of section 2, c. 323, 38 U. S. Statutes which was illegal, and they set up and pleaded as a counterclaim a rebatement of $1.10 on each of the first four carloads, and that by reason of said illegal price and the excessive quantity in the last shipment they had refused to receive the last carload, and pleaded as a counterclaim the $460.09 as freight and war tax paid by them on said last carload.

The defendants also pleaded as a counterclaim threefold damages by reason of the overcharge of $1.10 per barrel on said four carloads, making a total of $2,142.57, and threefold the damages of $2S.90 per month from October 15 for storage on the carload refused.

The court adjudged that the plaintiff recover of the defendant $2,079.87, with interest thereon from October 17. 1920, on the first cause of action, two carloads, and the further sum of $1,039.26, with interest from October 27, 1920, on the second cause of action, and retained the cause for trial as to the third cause of action. Appeal by defendants.

Cox & Dunn, of Laurenburg, for appellants.

Walter H. Neal, of Laurenburg, for appellee.

CLARK, C. J. [1] The court entered judgment upon the pleadings in-favor of the plaintiff upon the first and second causes of action, and "retained the cause for trial as to the third cause of action stated in the complaint, " and took no action as to the counterclaim pleaded by the defendants.

This court has uniformly held that it will not entertain fragmentary appeals.

"The court will not entertain appeals brought up in a fragmentary manner. The whole case must come up on appeal. Hines v. Hines, 84 N. C. 122; Commrs. v. Satchwell, 88 N. C. 1; White v. Utley, 94 N. C. 511; McGehee v. Tucker, 122 N. C. 186, 29 S. E. 833. An appeal from the ruling upon one of several issues will be dismissed. The trial and appeal must be upon the whole case. Hines v. Hines, 84 N. C. 122; Arrington v. Arrington, 91 N. C. 301."

"The trial of an action should embrace and determine all the matters at issue, so that a final judgment may be entered, and any errors committed may be...