Teeter v. Cole Mfg. Co.

• Decision Date: 23 December 1909
• Citation: 66 S.E. 582,151 N.C. 602
• Parties: TEETER v. COLE MFG. CO.
• Court: North Carolina Supreme Court

66 S.E. 582

151 N.C. 602

TEETER v. COLE MFG. CO.

Supreme Court of North Carolina

December 23, 1909

Appeal from Superior Court, Cabarrus County; Councill, Judge.

Action by M. F. Teeter against the Cole Manufacturing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

In an action for the price of a car load of lumber, plaintiff's own evidence held to show that the contract was rescinded by mutual agreement, so that he could not recover thereon for a part of the lumber taken and used by the buyer.

After the plaintiff had testified, the court intimated that, taking his evidence in its most favorable view, he would only be entitled to recover the value of such lumber as the defendant had taken from the car of lumber shipped, together with such damages as the plaintiff might have sustained by reason of the defendant selecting a portion of the lumber from the car and leaving the other as rejected. Upon such intimation of opinion the plaintiff excepted and submitted to a nonsuit and appealed to the Supreme Court.

Montgomery & Crowell, for appellant.

L. T Hartsell and Burwell & Cansier, for appellee.

BROWN J.

1. We are of opinion that the nonsuit taken voluntarily by plaintiff was premature. He should have excepted to the ruling of the court and proceeded with the trial. In any view he was entitled to a judgment for some amount. We again call attention to repeated rulings of this court that: "In order to avoid appeals based upon trivial interlocutory decisions, the right thus to proceed (viz., to take a nonsuit and appeal) has been said to apply ordinarily only to cases where the ruling of the court strikes at the root of the case, and precludes a recovery by the plaintiff." Hayes v. Railroad, 140 N.C. 131, 52 S.E. 416. "An intimation of an opinion by the judge adverse to the plaintiff upon some proposition of law, which does not take the case from the jury, and which leaves open essential matters of fact still to be determined by them, will not justify the plaintiff in suffering a nonsuit and appealing." Midgett v. Manufacturing Co., 140 N.C. 361, 53 S.E. 178; Merrick v Bedford, 141 N.C. 504, 54 S.E. 415; Hoss v Palmer, 150 N.C. 17, 63 S.E. 171.

2. As the result to plaintiff is the same whether we dismiss his appeal or affirm the ruling of the trial court, we will pass on the merits of the case, as it may tend to a settlement of the controversy. The plaintiff's complaint contains two causes of action; one for conversion of the lumber, and the other on a contract of purchase. The facts are that plaintiff contracted to sell and deliver to defendant, whose place of business was in Charlotte, a car load of lumber, two inches thick. While the lumber was in the car, plaintiff conferred with d...