Superior Foods, Inc. v. Harris-Teeter Super Markets, Inc.

• Decision Date: 27 August 1975
• Docket Number: No. 122,HARRIS-TEETER,122
• Parties: , 17 UCC Rep.Serv. 970 SUPERIOR FOODS, INC. v.SUPER MARKETS, INC. and Merico, Inc.
• Court: North Carolina Supreme Court

Page 566

217 S.E.2d 566

288 N.C. 213, 17 UCC Rep.Serv. 970

SUPERIOR FOODS, INC. v. HARRIS-TEETER SUPER MARKETS, INC. and Merico, Inc.

No. 122.

Supreme Court of North Carolina.

Aug. 27, 1975.

Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Gaston H. Gage, Charlotte, for plaintiff-appellant.

R. C. Carmichael, Jr., Wade & Carmichael, Charlotte, for Harris-Teeter Super Markets, Inc., defendant-appellee.

HUSKINS, Justice:

All assignments of error brought forward in plaintiff's brief to this Court relate to alleged errors in the trial court's instructions to the jury. Other assignments not properly presented and argued are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810 (1961).

In assignments one, two and three, plaintiff contends the trial court charged on matters unsupported by the evidence. In the instructions challenged by these assignments, the trial judge charged that the evidence would permit the jury to find any one of three factual variations to constitute the agreement between plaintiff and Harris-Teeter. He told the jury that if it found that Harris-Teeter did not agree to take and pay for the packaging materials upon termination, it could find from the evidence that (1) Harris-Teeter agreed to pay for the packaging materials only if the materials were used by Harris-Teeter or by the new supplier (Merico) for Harris-Teeter's benefit (Plaintiff's Exception No. 1), or (2) Harris-Teeter agreed to do what was necessary to have the packaging materials released to its new supplier (Plaintiff's Exception No. 2), or (3) Harris-Teeter and plaintiff agreed that, upon request from Harris-Teeter, plaintiff would release the packaging materials to the new supplier and the new supplier would pay for the packaging materials (Plaintiff's Exception No. 3).

Plaintiff did not object to these instructions at the trial but now takes exception to them and assigns same as error. Plaintiff argues that Harris-Teeter neither alleged nor offered evidence to prove an agreement between the parties conforming to any of the alternatives above set out.

The Court of Appeals declined to pass upon plaintiff's first three assignments based on Exceptions 1, 2 and 3 on the ground that all of the evidence was not sent up, citing Atwell v. Shook, 133 N.C. 387, 45 S.E. 777 (1903). Plaintiff asserts in this connection that the appellate courts are bound by the agreement of the parties that the record on appeal contains 'the necessary and relevant portions of the record and case on appeal needed to explain the exceptions and errors assigned.' Plaintiff therefore argues that the decision of the Court of Appeals violates Rule 19(5) of the Rules of Practice in the Supreme Court which is intended to discourage the printing of irrelevant and unnecessary matter on appeal.

Atwell v. Shook, supra, is distinguishable from the present case in that the record there did not contain a stipulation between counsel, as here, that the record on appeal contains 'the necessary and relevant portions of the record and case on appeal needed to explain the exceptions and errors assigned.' The record as certified imports verity and we are bound thereby. Rogers v. Rogers, 265 N.C. 386, 144 S.E.2d 48 (1965); Redden v. Bynum, 256 N.C. 351, 123 S.E.2d 734 (1962); Griffin v. Barnes, 242 N.C. 306, 87 S.E.2d 560 (1955).

In addition, the record in Atwell v. Shook contained a statement indicating that other Relevant evidence had been omitted from the record on appeal, and for that reason the Court declined to pass on appellant's exception based on the alleged lack of evidence to support the court's instructions. We find nothing in this record to indicate that omitted testimony Was relevant to the questions posed for determination. When the decision in Atwell v. Shook is read aright, it does not require that All the evidence in a case accompany an exception based on the insufficiency of the evidence to support an instruction to the jury. Only evidence Toward which an instruction is directed must be included in the record on appeal. Shepherd v. Dollar, 229 N.C. 736, 51 S.E.2d 311 (1949); See Brown v. Telegraph Company, 198 N.C. 771, 153 S.E. 457 (1930); Felmet v. Express Co., 123 N.C. 499, 31 S.E. 722 (1898); James v. R.R., 121 N.C. 530, 28 S.E. 537 (1897). For these reasons Atwell v. Shook, while obliquely applicable, is not controlling on the facts and circumstances of this case.

We now turn to appellant's contention on the merits of assignments one, two and three that the evidence was insufficient to support the trial court's instructions.

When charging the jury in a civil action the trial judge shall declare and explain the law arising on the evidence. G.S. § 1A--1, Rule 51 (1969); Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971). He must relate and apply the law to variant factual situations presented by some reasonable view of the evidence. Correll v. Gaskins, 263 N.C. 212, 139 S.E.2d 202 (1964); Westmoreland v. Gregory, 255 N.C. 172, 120 S.E.2d 523 (1961); Worley v. Motor Co., 246 N.C. 677, 100 S.E.2d 70 (1957). 'When the evidence is susceptible of several interpretations, a failure to give instructions which declare and explain the law in its application to the several phases of the evidence is held for reversible error.' Williams v. Coach Co., 197 N.C. 12, 147 S.E. 435 (1929). Conversely, an instruction relating to a factual situation not properly supported by the evidence is also erroneous. Dennis v. Voncannon, 272 N.C. 446, 158 S.E.2d 489 (1968); Dove v. Cain, 267 N.C. 645, 148 S.E.2d 611 (1966); Powell v. Clark, 255 N.C. 707, 122 S.E.2d 706 (1961).

Applying the foregoing principles to assignments one, two and three, we hold that the court's instructions are properly supported by the evidence in the record. Plaintiff alleges that Harris-Teeter terminated, without reasonable notice, an agreement under which Harris-Teeter was obligated to take labels and materials manufactured for Harris-Teeter and pay plaintiff for them. To support the allegation plaintiff offered the testimony of D. H. Meenach, President of Superior Foods, Inc. He testified that in 1968 he met several times with Mr. Williams, the head buyer, and Mr. Harris, the President of Harris-Teeter. They discussed the normal procedure of the biscuit business and were in agreement as to 'what happens if one side quits,' including who pays for cylinder costs, private labels and other details. On cross-examination Mr. Meenach said the officials of Harris-Teeter told him 'we will pay for any unfinished packaging materials.'

Mr. Meenach further testified as to the usual practice of the trade concerning labels and packaging materials on hand after termination of a contract by the retailer. He stated on cross-examination:

'. . . (T)he custom of the trade has been, and is now, that the retailer would write a letter to the present supplier telling him that he was being discontinued and usually with a notice, minimum of 15 days, usually more than that, usually 30 days, but minimum of 15 days, and then he was to release these labels to the new supplier. The custom of the trade was that the new supplier calls the old supplier to make arrangements with regards to the cans and labels, because there is (sic) other costs involved of packaging. . . . The custom of the trade would have been for Merico and Superior Foods to make arrangements with Cleve-Pak to have at least those cans and labels which were on inventory at ClevePak released to the new man, Merico. . . . (ClevePak) couldn't release them unless Superior Foods give (sic) him the authorization. . . . But the contact comes direct from Merico to Superior, not through ClevePak. The contact goes from Merico to Superior Foods. . . . What we are talking about mainly is custom of the trade. . . . And the implicity (sic) in that would be, as released, they would be paid for by Merico and charged back to the ultimate customer (Harris-Teeter) some way or another.'

Mr. Meenach also stated that, insofar as the circumstances were in its control, Harris-Teeter had done everything it agreed to do upon changing suppliers 'with exception to seeing that we actually got paid for the labels that had their name on it.' Referring to a meeting he had with Mr. Thomas, biscuit purchaser for Harris-Teeter, following termination of the agreement, he said 'Mr. Thomas told us that he believed Harris-Teeter's obligations ceased when the letter that he had written requesting to release material and taking the finished product on hand. . . . Mr. Thomas expressed a willingness to sit down with Superior and other parties on a further discussion of the problem, but said he would not take any position because he felt he had handled his problem. . . .'

The testimony of Mr. Meenach is ambiguous, and we think it is susceptible to the several interpretations given it by the trial court. In addition to plaintiff's allegation and evidence that Harris-Teeter expressly agreed to pay for the packaging materials, another permissible view of the testimony is that Harris-Teeter denied any contractual liability to Superior or Merico for the packaging materials after its letter of 2 July 1971 which confirmed termination of the contract And requested Superior to make all packaging materials available to Merico. If Harris-Teeter did not agree to pay for the packaging materials, but did agree to follow the normal practice in the biscuit business, it would have incurred subsequent liability for the packaging materials only when plaintiff complied with its request by releasing the materials to Merico according to trade practice and Merico used the materials thus received for Harris-Teeter's benefit. Such a view of the evidence supports that portion of the charge to which Exception No. 1 is directed.

Another permissible view of the evidence is that Harris-Teeter considered itself obligated to request plaintiff to release the packaging materials to...