Roberts-Atkinson Co. v. International Harvester Co. of America, Inc.

Decision Date03 March 1926
Docket Number104.
Citation131 S.E. 757,191 N.C. 291
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Johnston County; Lyon, Judge.

Suit by the Roberts-Atkinson Company against the International Harvester Company of America, Incorporated. From a judgment for defendant, plaintiff appeals. Reversed.

Whether unsold tractor, in dealer's possession on termination of agency, was held on consignment held for jury.

The plaintiff alleges that it was a corporation doing a general mercantile business in the town of Selma, N. C.; that defendant was a corporation doing a general manufacturing and sales business of harvesting machinery, tractors, wagons, and other farm implements, with a branch office in Charlotte, N C.; that, since about 1914, plaintiff had been agent for, and represented, the defendant in Selma territory for the sale of its machinery, etc., until the year 1922, when the defendant on February 24, 1922, notified plaintiff that the territory for the sale of defendant's machinery was placed in other hands; that no prior notice was given plaintiff, and plaintiff was left with $3,394.58 worth of harvesting machinery, merchandise, parts, etc., of defendant's on hand unsold. It is further alleged:

"(8) That, in addition to the foregoing, this plaintiff has in its custody, and control, one International tractor, $800 which was consigned to this plaintiff, and which this plaintiff has been unable to sell, and now has on hand, subject to the orders of the defendant, and for which this plaintiff is entitled to credit, on the note due by the plaintiff to the defendant, as set out in the following paragraph:

(9) That this plaintiff is indebted to the defendant in the sum of $1,074.22, and the interest due on the renewal note for the machinery and merchandise purchased from the defendant, and which this plaintiff stands ready and willing to pay the same whenever the defendant pays this plaintiff for the value of its products which it has on hand, and which this plaintiff is unable to dispose of because of the severance of their contract with the defendant, without any excuse or without any complaint on the part of the defendant of its notice or intention so to do."

The plaintiff contended that, on account of the breach of contract on part of defendant, it was damaged in the sum of $3,394.38 for machinery and parts left on hand unsold, and in other respects $2,000, not necessary to set out.

The plaintiff prays:

"That the defendant be required to credit the note of the plaintiff with the sum of $800, for the tractor consigned to this plaintiff, and held subject to the orders of the defendant; that the defendant be required to redeem the property and parts, now in the possession of the plaintiff, which is made practically worthless by reason of the defendant canceling the contract with this plaintiff, without notice to this plaintiff, and pay the plaintiff for the value of the same, to wit, $2,594.38, less the balance on the note of $1,074.22 and interest, due by the plaintiff to the defendant, after deducting the value of the tractor $800, as above stated; that the plaintiff recover of the defendant the sum of $2,000 damages by reason of the unlawful termination of said contract without notice to the plaintiff--that is, $1,000 damages in the advertising and work in building up the sale of the defendant's products, and $1,000 damages in the failure of the plaintiff to collect the notes given for the purchase of the defendant's products by reason of the defendant's unlawful termination of the contract aforesaid, and the plaintiff's inability to furnish the parts to the machinery so sold--for the cost of this action, to be taxed by the clerk, and for such other and further relief, as the plaintiff may be entitled to in the premises."

The defendant, answering, says:

"That it is true that the plaintiff executed unto the defendant in writing a 'sale contract and order' on April 14, 1921, which was accepted by the defendant at the Charlotte, N. C., branch, on the 19th day of May, 1921, upon Thomas H. Atkinson having entered into a contract with the defendant guaranteeing the payment of all obligations of the plaintiff arising thereunder; that all liabilities of the defendant under the provisions of said contract terminated on the 31st day of October, 1921, as set forth in said written contract; that it is true that the plaintiff and the defendant had from year to year, for several years prior thereto, entered into similar annual contracts; that it is true that the defendant declined to enter into a similar contract with the plaintiff for the year 1922, as it had the legal right to do; that the defendant did enter into a similar annual contract for the year 1922, with Roberts & Brothers of Selma, and so notified the plaintiff on or about the 24th day of February, 1922; that the defendant was under no obligations whatever to give plaintiff notice of its intention of exercising its right of declining to enter into a contract with the plaintiff for the year 1922; that the defendant was within its legal right in declining to contract with the plaintiff or any other person for the year 1922; * * * that the International tractor, mentioned in article 8 of the complaint, was sold by the defendant to the plaintiff and its promissory note accepted therefor, which note has been paid in full by the plaintiff; and, except as herein admitted, article 8 of the complaint is denied."

Defendant denies the other allegations of plaintiff.

At the close of plaintiff's evidence, defendant made a motion for judgment as of nonsuit, which was allowed by the court below. Plaintiff excepted, assigned error, and appealed to the Supreme Court. Necessary facts will be considered in the opinion.

W. P. Aycock, of Selma, and W. H. Lyon and F. H. Brooks, both of Smithfield, for appellant.

Clifford & Townsend, of Dunn, for appellee.


The "sale contract and order," made between plaintiff and defendant, was introduced by plaintiff. It was dated April 14, 1921, and was for the year 1921. Plaintiff's witness, Thomas H. Atkinson, president of plaintiff corporation, admitted on cross-examination that the defendant company "declined to renew the contract," etc. Atkinson also testified that his company had been handling the defendant's products in the Selma territory from about 1914 to and including 1921.

It is not necessary to state the grievances of plaintiff. The circumstances, under which defendant declined to renew the contract with plaintiff, may be hard on plaintiff company, but in defendant's answer its says it "was within its legal right," etc. We take the same view from the evidence.

Courts cannot make contracts for parties. It is their province to construe them when made. The parties to the present contract were sui juris. There is no fraud or mutual mistake alleged. Plaintiff's contract with defendant was for 1921. Defendant declined to renew it. Plaintiff is bound by the written words: "It is to the interest of the parties, and society as well, that contracts be performed as made." Building Co. v. Greensboro, 130 S.E. 203, 190 N.C. p. 506. The promise is made to those (Psalm XV, part of v. 4), "He that sweareth to his own hurt and changeth not."

From the entire record there is no sufficient evidence to sustain any of plaintiff's contentions, except the eighth allegation of complaint in reference to the "International tractor." We think on this aspect there was sufficient evidence to be submitted to the jury.

C. C. Hinton testified, in part:

"During 1918 and 1919, I was bookkeeper for the plaintiff. I was present when the transaction occurred about the tractor being sent to us. Mr. Smith, representative of the defendant called the 'block man,' who was general sales manager for this territory, made the consignment contract with reference to this tractor. They had some tractors stored down there. The defendant had previously shipped some tractors down to us to be stored and then reshipped, and Mr. Smith agreed with Mr. W. B. Roberts, who was then the general manager of the plaintiff corporation, that, if he would buy one of the little No. 181 tractors, he would guarantee he (Smith) would sell it, and he said he (Smith), would guarantee the sale of it, and the tractor was shipped to the plaintiff under those conditions. In settlements with Mr. Hummerickhouse, collector for the defendant company, this tractor was left off at different times on account of the understanding between Mr. Smith and the plaintiff. I have heard Mr. Hummerickhouse and other agents or collectors of the defendant's refer to this tractor in their settlements with the...

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1 cases
  • Maxwell v. Proctor & Gamble Distributing Co.
    • United States
    • North Carolina Supreme Court
    • 8 Marzo 1933
    ... ... at page 328, ... 131 S.E. 643; Roberts-Atkinson Co. v. Harvester Co., ... 191 N.C. 291, 131 S.E. 757; ... 589, 152 S.E ... 697; Buchanan v. Carolina Stores, Inc., 200 N.C ... 792, 158 S.E. 924 ... ...

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