Waldron Buick Co. v. General Motors Corp., 242

• Citation: 118 S.E.2d 559,254 N.C. 117
• Decision Date: 01 March 1961
• Docket Number: No. 242,242
• Court: North Carolina Supreme Court
• Parties: WALDRON BUICK CO. v. GENERAL MOTORS CORPORATION and Lee A. Folger, Inc.

Page 559

118 S.E.2d 559

254 N.C. 117

WALDRON BUICK CO. v. GENERAL MOTORS CORPORATION and Lee A. Folger, Inc.

No. 242

Supreme Court of North Carolina.

March 1, 1961

Blakeney, Alexander & Machen, Charlotte, for plaintiff, appellant.

Kennedy, Covington, Lobdell & Hickman, Charlotte, and Henry M. Hogan, Detroit, for defendant General Motors Corporation, appellee.

Cochran, McCleneghan & Miller, Charlotte, for defendant Lee A. Folger, Inc., appellee.

BOBBITT, Justice.

Plaintiff seeks to recover treble damages for business losses allegedly caused by acts committed pursuant to an alleged unlawful combination or conspiracy entered into by defendants in July, 1955, to restrain trade in Buick automobiles in an area in and around Charlotte, North Carolina, to prevent competition in the selling of goods in that area, and to destroy plaintiff's business. G.S. § 75-1, 75-16.

A plaintiff must make out his case secundum allegata. There can be no recovery except on the case made by his pleadings. Andrews v. Bruton, 242 N.C. 93, 95, 86 S.E.2d 786, and cases cited; Manley v. Greensboro News Co., 241 N.C. 455, 460, 85 S.E.2d 672, and cases cited.

The basic question is whether the evidence, when considered in the light most favorable to plaintiff, is sufficient to support a finding that the defendants entered into the alleged unlawful combination or conspiracy. Hence, the evidential facts stated below include only portions of the testimony and exhibits deemed pertinent to a determination of this basic question.

Waldron was incorporated in April, 1955. It commenced business in May, 1955, pursuant to its written agreement of April 25, 1955, with General Motors, as the Buick dealer in Concord. Folger was, and had been for many years, the established Buick dealer in Charlotte.

The dealership agreement between General Motors and Folger, in effect on and prior to April 25, 1955, and thereafter, provided: 'First: Subject to the terms and conditions hereof, Seller (General Motors) will sell and Dealer (Folger) will buy Buick motor vehicles and chassis and Dealer shall have the obligation to develop properly the sale thereof particularly in the' 'Metropolitan Area of Charlotte, N. C.,' defined as the City of Charlotte and a described portion of Mecklenburg County lying southeast of and immediately adjacent to the City of Charlotte.

The Folger dealership agreement provided that no changes as to the maximum number of dealers in said Charlotte area would be made by General Motors 'unless and until a survey, analysis or review' thereof 'has been made and at least sixty (60) days' notice of such proposed change shall have been given' to Folger so that it, if it desired to do so, would have opportunity to discuss the proposed change with General Motors prior to the effective date thereof. In an addendum, made a part of said dealership agreement and executed simultaneously therewith, General Motors established 'at One (1),' to wit, Folger, the maximum number of Buick dealers to be located in said Charlotte area.

The dealership agreement of April 25, 1955, between General Motors and Waldron, provided: 'First: Subject to the terms and conditions hereof, Seller (General Motors) will sell and Dealer (Waldron) will buy Buick motor vehicles and chassis and Dealer shall have the obligation to develop properly the sale thereof particularly in the following area: Concord, North Carolina.'

Waldron established its place of business in leased premises located on U. S. Highway No. 29, 'half a mile from the city limits of Concord and 14 miles from Charlotte * * * on the right-hand side as you go out 29 towards Greensboro.' W. R. Waldron Sr., and W. R. Waldron, Jr., executive officers of Waldron, resided in Charlotte. Waldron, Jr., had been sales manager in Charlotte for Young Motor Company, Ford Dealer in Charlotte. Waldron employed Gordon and Allison, who resided in Charlotte, as salesmen. They had previously been employed in Charlotte as salesmen (under Waldron, Jr.) for Young Motor Company. Gordon and Allison had 'a clientele already built up in Charlotte, their primary duty was to sell cars and to develop the sales in the area of Charlotte and Mecklenburg County * * *.'

In May, 1955, Waldron sold a total of twenty-one new Buicks, five in Charlotte, eleven in the Concord area, two in Kannapolis, two in Salisbury, and one (undesignated) elsewhere. In June, 1955, Waldron sold a total of twenty-four new Buicks, fourteen to residents of Charlotte, six in the Concord area, one in Kannapolis, and three (undesignated) elsewhere. In July, 1955, Waldron sold a total of twenty-one new Buicks, eight in Charlotte, five in the Concord area, two in Kannapolis, two in Salisbury, and four (undesignated) elsewhere. Prior to July 15, 1955, Gordon and Allison (Waldron's salesmen) spent about ninety per cent of their time soliciting sales in Charlotte.

Testimony, admitted as to General Motors but not as to Folger, tends to show that officials of General Motors, prior and subsequent to the execution of Waldron's dealership agreement of April 25, 1955, but before the conference of July 20, 1955, discussed below, gave assurances that Waldron had the right to contact prospective purchasers and solicit sales in Charlotte and would be permitted and expected to do so.

Folger protested Waldron's sales activities in said Charlotte area.

On May 23, 1955, in a conversation between Spencer Folger, an official and stockholder of Folger, and Waldron, Jr., General Manager of Waldron, Spencer Folger said: 'Bill, you have to get these salesmen out of Charlotte. They are over here working on our customers, calling on people that are interested in buying cars at Folger and that some of our salesmen are dealing with. You got to stay out of Charlotte. You got to quit this advertising. Now, Bill, you and I have been friends for a long time. I have known you and your family but this is business. I put one dealer out of business and I got a lot of money and will put you out of business if you don't cut this out. I have a lot more money than you got.'

In June, 1955, in a telephone conversation with Waldron, Jr., Spencer Folger said he was 'very tired' of his salesmen reporting to him that Waldron's salesmen were still living in Charlotte and that they were following up deals in Charlotte. Also: 'Now, Bill, you have got to move those men out of town; you have got to stay over there. If you don't, I am going to put you out of business just like I have put another dealer out of business.'

Prior to the conference of July 20, 1955, discussed below, Folger complained to General Motors of Waldron's interference with Folger's sales activities in Charlotte, contending its dealership agreement entitled it to protection therefrom.

The conference of July 20, 1955, was held in the Charlotte office of the Buick Motor Division of General Motors. Frank Leigh, an official of General Motors, Waldron, Jr., and Spencer Folger were present. Waldron asserted it had the right to continue active sales solicitation in said Charlotte area. Folger contended it had been designated the only dealer in said Charlotte area and that General Motors was obligated to protect it from interference by Waldron. In the course of the conversation, Spencer Folger said: 'Frank, if you are going to let this man sell in Charlotte when we have a million-dollar investment here, I am going to Belmont and close my doors and I will operate the same way he is.'

As the conference of July 20, 1955, concluded, Leigh said: 'Bill, I have got to protect this dealer's investment here. This man has a large investment. * * * I want you to get into your own little back yard and get into the spirit of things, * *. I want you to get over there and sell your cars in Concord; leave Charlotte alone.'

The following day, July 21, 1955, Waldron, Jr., in a letter to Leigh, said:

'It was certainly nice of you to give Spencer and myself the time you did yesterday. It was a very understanding interview.

'We know and appreciate that Spencer and Lee Folger have a large investment and are out to protect that investment. We also know that they are of the opinion that we are soliciting business in the Charlotte area. Frank, we can truthfully say that we are not soliciting business, but have followed up people who have expressed a desire to have us offer them a trade or straight sale proposition.

'In regards to your decision concerning following up any persons who might come over here and being unable to close a transaction in our place, we follow them up in Charlotte, we are not completely in accord.

'As we discussed yesterday, Mr. Jack Williams informed us that we could follow up any party desirous of having us offer them a proposition. This decision came after our discussing the Grant Motor Company of Kannapolis following up deals in the limits of Concord.

'We feel that if we are not allowed to follow up persons who are desirous of dealing with us, that we are being curtailed in an unfair way.

'You may rest assured that we are not intending to do anything contrary to your decision, under any circumstances, but we would appreciate your reviewing the situation and upon such reviewing, perhaps alter your decision to the point that we be allowed to follow up such persons who approach us and are desirous of having us offer to them a proposition.

'We will appreciate your consideration in this matter, and would like to know your feelings at your convenience.'

Shortly thereafter, apparently in early August, 1955, Waldron, Jr., complained to Jack Williams, Buick's District representative for the Concord area, of the restrictions imposed by Leigh on Waldron's sales activities. Williams replied: 'Now, this is Buick Motor Division's orders to me to give you. Bill, you stay out of Charlotte.'

Waldron's dealership agreement of April 25, 1955, expired October 31, 1955. It executed a second dealership agreement dated November 1, 1955, containing identical...