Stokes v. Edwards
| Decision Date | 20 April 1949 |
| Docket Number | 308 |
| Citation | 52 S.E.2d 797,230 N.C. 306 |
| Parties | STOKES et al. v. EDWARDS et al. |
| Court | North Carolina Supreme Court |
The case made out by the plaintiffs' evidence arose in 1946 and was as follows:
The defendants, J. H. James and J. H. James, Jr., partners hereinafter called James and James, and the defendants, W Robert Johnson and J. F. Sherman, partners trading as Johnson-Sherman Company, hereinafter called Johnson and Sherman, manufactured and wholesaled oil burners for curing tobacco under an overall partnership agreement. Acting through the agency of their sales representatives, the defendants, D. Archie Edwards, Don Casey, and Thomas E Casey, who did business under the style of Edwards, Casey and Sons, the defendants, James and James, and the defendants, Johnson and Sherman, sold fourteen of the oil burners to the plaintiffs, W. F. Stokes and J. B. Congleton, Jr., partners, trading as Stokes and Congleton, retail dealers, with knowledge that the plaintiffs relied upon their skill or judgment in the premises and intended to resell such burners to farmers for use in tobacco barns for curing tobacco. The plaintiffs paid the defendants, James and James, and the defendants, Johnson and Sherman, $1,650 for the fourteen oil burners, and made an addition outlay of $140 in installing them in the barns of the farmers to whom they were resold. When put in operation, the fourteen oil burners proved to be wholly unfit for use in curing tobacco in that 'all the heat stayed in the burners,' or the burners became 'red hot,' setting the barns on fire. Pursuant to the insistent demands of their customers, the plaintiffs repossessed the fourteen oil burners, refunded their retail sale prices to their customers, and called upon the defendants, Johnson and Sherman, for restitution. Soon thereafter, to wit, on October 18, 1946, the defendants, Johnson and Sherman, acting through the agency of J. F. Sherman, entered into an oral agreement with the plaintiffs whereby the plaintiffs surrendered the fourteen defective oil burners to Johnson and Sherman and refrained from bringing legal proceedings for the recovery of the loss they had suffered and whereby Johnson and Sherman agreed that they 'would either replace the burners or give plaintiffs their money back. ' Johnson and Sherman accepted the return of the burners by the plaintiffs and retained them, but subsequently refused to make reparation to plaintiffs in either of the alternative ways specified in the agreement of October 18, 1946.
The plaintiffs sued all of the defendants upon a complaint setting forth in substance the above matters and the additional averments that J. F. Sherman acted for James and James as well as for Johnson and Sherman in making the agreement of October 18, 1946. But no testimony was given on the trial tending to show that James and James either authorized or ratified the agreement in question.
The action was dismissed as to the defendants, D. Archie Edwards, Don Casey, and Thomas E. Casey, upon a demurrer ore tenus, and proceeded to trial as between the plaintiffs and the other four defendants, who filed a joint answer denying all of the material allegations of the complaint.
The defendants, James and James, offered no evidence at the trial, but Johnson and Sherman introduced testimony which tended to show that they were neither the manufacturers nor the sellers of the fourteen oil burners in controversy; that, on the contrary, they acted in the premises simply in the capacity of known and authorized agents for disclosed principals, to wit, James and James, the real manufacturers and sellers; that similar oil burners made and sold by James and James had proved in practice to be well adapted to use for curing tobacco; and that they had never entered into any agreement to make any reparations to the plaintiffs.
Issues were submitted to and answered by the jury as follows:
1. Were the fourteen oil burners described in the complaint manufactured by J. H. James, J. H. James, Jr. and W. Robert Johnson and J. F. Sherman, trading as Johnson-Sherman Company, as partners? Answer: Yes.
2. If not, were the said fourteen oil burners described in the complaint manufactured solely by J. H. James and J. H. James, Jr? Answer: No.
3. Did the plaintiffs purchase the fourteen oil burners described in the complaint from Edwards-Casey & Sons and were Edwards-Casey & Sons, agent of Johnson-Sherman Company? Answer: Yes.
4. If J. H. James and J. H. James, Jr. were the sole manufacturers of the fourteen oil burners described in the complaint did Robert Johnson and J. F. Sherman, trading as Johnson-Sherman Company, agents of J. H. James and J. H. James, Jr., sell said oil burners described in the complaint to the plaintiff through Edwards-Casey & Sons as sub-agents? Answer: No.
5. Were the fourteen oil burners purchased by the plaintiffs from Edwards-Casey & Son, as described in the complaint, defective in material or workmanship at the time of their delivery to the plaintiff so that they were not reasonably fit for the use for which they were intended? Answer: Yes.
6. Did the defendants W. Robert Johnson and J. F. Sherman, trading as Johnson-Sherman Company, agree with the plaintiffs to make good any and all damages sustained by the plaintiffs in the sale of said fourteen oil burners described in the complaint, and, if so, have they failed to do so? Answer: Yes.
7. What damage, if any, are the plaintiffs entitled to recover from James H. James and James H. James, Jr.? Answer: None.
What damage, if any, are the plaintiffs entitled to recover from W. Robert Johnson and J. F. Sherman, trading as Johnson-Sherman Company? Answer: $1,790.
The defendants, Johnson and Sherman, excepted to the submission of the first, third, fourth, fifth, sixth, and eighth issues, but did not suggest or tender any other issues.
Judgment was entered on the verdict in favor of plaintiffs and against the defendants, 'W. Robert Johnson and J. F. Sherman, T/A Johnson-Sherman Company, ' for $1,790 and costs of the action, and Johnson and Sherman appealed, assigning the refusal of the trial judge to dismiss the action upon a compulsory nonsuit and other rulings as error.
J. B. James and W. W. Speight, both of Greenville, for plaintiffs-appellees.
J. Faison Thomson, of Goldsboro, and J. W. H. Roberts, of Greenville, for defendants, W. Robert Johnson and J. F. Sherman, trading as Johnson-Sherman Company, appellants.
An understanding of the precise nature of the cause of action upon which the judgment has been rendered is indispensable to a determination of the validity of the assignments of error.
When it is construed with a proper degree of liberality, the complaint states two causes of action alternative in nature to wit: (1) A primary cause of action for damages for breach of an implied warranty that the fourteen oil burners were reasonably fit for the particular use of curing tobacco; and (2) a secondary cause of action for breach of an express contract, i. e., the agreement of October 18, 1946, by which the appellants and their...
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