Towery v. Carolina Dairy, Inc.
| Decision Date | 15 April 1953 |
| Docket Number | No. 306,306 |
| Citation | 237 N.C. 544,75 S.E.2d 534 |
| Court | North Carolina Supreme Court |
| Parties | TOWERY et al. v. CAROLINA DAIRY Inc. |
Horace Kennedy and Horn & West, Shelby, for plaintiff appellants.
D. Z. Newton and Peyton McSwain, Shelby, for defendant appellee.
Whether the 'request' made by counsel for defendant be treated as a demurrer or a motion for judgment on the pleadings, the judgment entered thereon was erroneous and must be vacated.
While the breach of a continuing contract may justify a termination of the contract by the innocent party, the mere fact a breach of one of the provisions of the contract has been committed by one party does not necessarily accomplish that result, as the party not in fault may elect to waive the breach and continue performance regardless the of breach. Lowell v. Wheeler's Estate, 95 Vt. 113, 112 A. 361; Dudzik v. Degrenia, 48 R.I. 430, 138 A.57, 57 A.L.R. 823; Miller v. Mantik, 116 Md. 279, 81 A. 797; Cook & Bernheimer Co. v. Hagedorn, 82 Ind.App. 444, 131 N.E. 788; Thomas-Bonner Co. v. Hooven, O. & R. Co., D.C., 284 F. 377.
Where there is a breach of a contract or some provision thereof which does not go to the substance of the whole contract and indicate an intention to repudiate it, the breach may be waived by the innocent party. Non constat such breach, he may elect to treat the contract as still subsisting and continue performance on his part. H. M. Wadc Manufacturing Co. v. Lefkowitz, 204 N.C. 449, 168 S.E. 517; Danville Lumber & Manufacturing Co. v. Gallivan Building Co., 177 N.C. 103, 97 S.E. 718; Sinclair Refining Co. v. Costin, Tex.Civ.App., 116 S.W.2d 894; 12 A.J. 967-8; 17 C.J.S., Contracts, §§ 475, 491, pages 981-982, 992.
Here, while plaintiffs plead the breach in 1947 of one of the provisions of the contract sued upon, they further allege facts showing a waiver on their part and continued performance; and the defendant, in its answer, expressly pleads waiver. Even so, the defendant moves the court to dismiss the action for that it is barred by the three-year statute of limitations and bases its motion on a unilateral, self-serving, conditional admission that the contract was breached in 1947, more than three years prior to the institution of this action. The judgment entered clearly indicates the court below considered this admission in arriving at its conclusion that the action of the plaintiffs is now barred by the applicable statute of limitations.
In this there was error. Extraneous matter dehors the pleadings may not be considered either on demurrer or on motion for judgment on the p...
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...116 S.E.2d 186; Lamm v. Crumpler, 240 N.C. 35, 81 S.E.2d 138; Foust v. City of Durham, 239 N.C. 306, 79 S.E.2d 519; Towery v. Carolina Dairy, 237 N.C. 544, 75 S.E.2d 534; McDowell v. Blythe Bros., 236 N.C. 396, 72 S.E.2d 860; Union Trust Co. v. Wilson, 182 N.C. 166, 108 S.E. 500; Davison v.......
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...whole contract and indicate an intention to repudiate it, the breach may be waived by the innocent party." Towery v. Carolina Dairy, Inc., 237 N.C. 544, 546, 75 S.E.2d 534, 536 (1953): see Wheeler v. Wheeler, 299 N.C. 633,637-40,263 S.E.2d 763, 765-67 (1980). The waiver must be a voluntary ......
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..."waiver by continuing to accept performance," they do make clear that the same legal principles apply. In Towery v. Carolina Dairy, Incorporated, 237 N.C. 544, 75 S.E.2d 534 (1953), plaintiff dairy continued performing under the terms of a requirements contract even after defendant milk dis......
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