Southern Cotton Oil Co v. S. Breen & Co

• Decision Date: 23 February 1916
• Docket Number: (No. 107.)
• Court: North Carolina Supreme Court
• Parties: SOUTHERN COTTON OIL CO. v. S. BREEN & CO.

87 S.E. 938

171 N.C. 51

SOUTHERN COTTON OIL CO.

v.S. BREEN & CO.

(No. 107.)

Supreme Court of North Carolina.

Feb. 23, 1916.

Appeal from Superior Court, Wayne County; Bond, Judge.

Action by the Southern Cotton Oil Company against S. Breen & Co. From a judgment for plaintiff, it appeals. Reversed, with direction to enter judgment upon voluntary nonsuit.

The plaintiff sought to recover damages for the breach of a contract, dated October 15, 1913, which was alleged to have been made between it and the defendants for the sale of certain "mill-run linters" and "second-cut linters, " the defendants, as alleged, having agreed to take the entire output of the plaintiff's mill for the season of the years 1913 and 1914, and plaintiffs agreeing to deliver them, as fast as they could be made ready for shipment, at the prices stated in the contract. The question as to the liability of A. E. and P. C. Shore turned upon the authority of S. Breen, who assumed to act for the defendants, to make the contract for them, and the subsequent ratification of the contract by the Shores. The case was submitted to the jury upon issues, which, with the answers thereto, are as follows:

(1) Was the act and conduct of S. Breen, in making the contract sued on in the complaint, beyond the scope of the partnership business? Answer: Yes.

"(2) Was the defendant S. Breen in making the contract with the plaintiff acting within the apparent scope of his authority? Answer: No.

"(3) Did the defendants Shore and Shore have knowledge that S. Breen had made or entered into the contract sued on? Answer: No.

"(4) If there was any limitation upon the authority of S. Breen to make the contract, did plaintiff have any knowledge or notice thereof? Answer: No.

"(5) Did Southern Cotton Oil Company have notice at or before making of said alleged contract of any facts or circumstances calculated to put a prudent man on notice that S. Breen was making said purchase for purposes outside of the scope of said partnership business? Answer: No.

"(6) Did the defendants Shore and Shore by their acts and conduct ratify the transaction? Answer: Yes.

"(7) Were the linters shipped from Tarboro worthless and without commercial value as alleged in the answer? Answer: No.

"(8) What was the difference in market value, if anything, of the linters shipped from Tarboro (52 bales) and the contract price, at time Shore and Shore refused to take them? Answer: No difference.

"(9) At contract price, what sum would represent the 52 bales sent from Tarboro at time it was refused by Shore and Shore, if said goods were of kind bought under alleged contract? Answer: $815.25 (by consent).

"(9 1/2) Did plaintiff, Southern Cotton Oil Company, to whose order the 52 bales were shipped from Rocky Mount, leave same with the railroad so they were lost, after plaintiff was notified by the defendants Shore and Shore that they would not receive same? Answer: Yes.

"(10) What amount are defendants Shore and Shore indebted to the plaintiff? Answer: $1.

"(11) In what amount is defendant S. Breen indebted to plaintiff? Answer: $1."

The jury retired with the issues, after being charged by the court upon the law.

The following statement appears in the record:

"About 7 p. m. the judge was sent for, and counsel for both sides being present, the jury handed the issues to the judge with part of the issues, including issues 10 and 11 as to damages, answered. The court having, at plaintiff's request, charged the jury to answer all the issues as to liability in favor of plaintiff in any view of the evidence, counsel for defendant agreed that, subject to defendant's exceptions to the correctness of the charge, the court could write the answers in favor of plaintiff to issues Nos. 4, 5, and 6, and by consent of plaintiff the court wrote the answers to Nos. 9 and 9 1/2. This left all the issues answered, as appears in record, except the issues numbered 7 and 8. Each issue with the answers to the same, except issues 7 and 8 and the issues as to amount of damages, was then read aloud in presence of counsel for both sides, and the jury agreed that such was their verdict as to all the issues then answered. The court then handed the paper back to the jury and told them to retire and consider their answers as to issues 7 and 8, and to return when they had answered them, if they wished no change in any others, and the jury then retired to their room. All of the above occurrences took place in presence of counsel for both sides and without any objection.

"The plaintiff's counsel, soon after the jury

[87 S.E. 930]

went in their room, arose and said that plaintiff would take a nonsuit. Defendant objected; objection sustained, and plaintiff excepted.

"A few moments thereafter some question arose as to the exact language of issues 7 and 8, and the court told the officer to knock on the door of the jury room and ask the jury to send the paper to the court for a moment. The court took the paper and read issues 7 and 8 and asked if counsel for defendant objected to the withdrawal of issues 7 and 8, to which the reply was, 'No.'

"The court then had the jury called in and, in the presence of counsel for both sides, stated that it had concluded to withdraw issues 7 and 8, and then did so. Counsel for plaintiff objected to the withdrawal of issues 7 and 8, and excepted to the action of the court in withdrawing same. The jury was then called in and the issues and answers to same, except the seventh and the eighth, being read aloud, and being exactly as they were when the jury was sent out to consider issues 7 and 8, were again asked, if that was their verdict before they were sent out to consider issues 7 and 8, and if it was still their verdict. They answered both questions in the affirmative. The court ordered the verdict as to all the issues except 7 and 8 to be recorded, and the plaintiff excepted. Before the jury was sent out to consider issues 7 and 8, counsel for plaintiff knew the answers to all the other issues, except the issues relating to damages, which had been answered by the jury before they first came in. When the court sent out to borrow the issues, as above stated, and got the paper, answers to issues 7 and 8 had been written by the jury, but as far as the court knows, neither side knew what the answers to 7 and 8 were."

The following statement also is in the case:

"After the jury retired to consider its verdict the occurrences hereinbefore related took place, as shown by the memorandum, made by the court at the time, the court now adding thereto this statement: At the time the verdict was handed back by the judge to the jury, and they were told to retire and answer issues 7 and 8, which were afterwards withdrawn, the court then regarded said verdict as in all respects completed, except as to said issues 7 and 8, and would have had same recorded without handing them back to the jury but for the opinion of the court, at that time, that it would perhaps be better to have the answers to 7 and 8 as well as to the other issues, which answers as to 7 and 8 the court soon thereafter concluded were immaterial, as set out in the recital of the occurrences which precedes this statement. The court did not at any time regard issues 7 and 8 as being necessary to a determination of the action, but was actuated simply by a desire to have all facts before the Supreme Court, in the event that the court might mistake the law in laying down the proper rule as to the measure of damages. The court charged the jury fully as to the measure of damages, and no exception was taken thereto by the plaintiff, either at the trial or in its case made out for the Supreme Court and served."

This statement by the judge also...