Wooten v. S.R. Biggs Drug Co.

• Decision Date: 05 May 1915
• Docket Number: 437.
• Citation: 85 S.E. 140,169 N.C. 64
• Parties: WOOTEN v. S. R. BIGGS DRUG CO.
• Court: North Carolina Supreme Court

85 S.E. 140

169 N.C. 64

WOOTEN v. S. R. BIGGS DRUG CO.

No. 437.

Supreme Court of North Carolina

May 5, 1915

Appeal from Superior Court, Mecklenburg County; Shaw, Judge.

Action by M. F. Wooten against the S. R. Biggs Drug Company. From a judgment dismissing the action, plaintiff appeals. Affirmed.

This is an action to recover damages, in which the plaintiff filed the following complaint:

"The plaintiff, complaining of the defendant, alleges: (1) That he is and was, at the times hereinafter mentioned, a resident and citizen of said county and state, and that the defendant is and was, at said times, a corporation under and by virtue of the laws of North Carolina, engaged in the business of handling drugs, fountain beverages, etc., with its principal place of business in the city of Williamston in Martin county in said state. (2) That on or about the 25th day of September, 1913, the plaintiff and defendant entered into the following agreement, to wit: 'It is understood and agreed by M. F. Wooten and S. R. Biggs Drug Company that the said M. F. Wooten is to make blue print plans, elevation and perspective sketches and detailed specifications for one set of drug fixtures to be purchased by the Biggs Drug Company. It is further agreed that upon receipt of said sketch, plans and specifications, the S. R Biggs Drug Company will pay the sum of one hundred ($100.00) dollars to M. F. Wooten for said services and then if S. R. Biggs Drug Company should accept the proposition from M. F. Wooten on the fixtures and buy same from him, the money paid (one hundred dollars) will be credited on the face of the contract and credit for this amount will be given on the purchase price. In case S. R Biggs Drug Company buys from another man or firm then M. F Wooten will keep said money, and be fully paid for his services. [ Signed] S. R. Biggs Drug Company, S. R. B. [ Signed] M. F. Wooten.' (3) That agreeable to the foregoing the said plaintiff prepared and delivered to the defendant the plans and specifications above referred to, and the same were duly accepted by the defendant, whereby the defendant became indebted to the plaintiff in the sum of $100, as above set forth. (4) That said plans were for the purpose of enabling the defendant to purchase and install certain drug store fixtures which it proposed to purchase. That plaintiff was a representative of a concern furnishing such fixtures. That by the terms of said contract and a cotemporaneous agreement the defendant contracted and agreed with plaintiff to notify plaintiff when it would be ready to let bids for said proposed purchase of certain drug store fixtures, and assured the plaintiff that it would favor him in the purchase of said fixtures. (5) That plaintiff is informed and believes, and so alleges, that the defendant has already purchased said fixtures without notifying plaintiff or giving him an opportunity to be present and bid upon said fixtures. That plaintiff is informed and believes, and so alleges, that the defendant has purchased fixtures conformable to said plans from the other parties in the sum of about $3,500, and that if plaintiff had been notified of said purchase by defendants and been permitted to bid on said fixtures, he could and would have met said price and thereby obtained said order, which would have netted plaintiff 20 per cent. or $750. (6) That by reason of the failure of the defendant to comply with its contract and permit plaintiff to participate in said bidding, the plaintiff lost said sale and the commission thereon, and that thereby the defendant is justly indebted to the plaintiff in the sum of $750. Wherefore the plaintiff prays judgment against the defendant for $750, with interest thereon from the ______ day of _____, 1914, and the costs of the action to be taxed by the clerk."

At the return term of the summons and after the complaint was filed, the defendant moved to dismiss the action for want of jurisdiction in the superior court, upon the ground that the only cause of action alleged in the complaint was for the recovery of $100, which was in the jurisdiction of a justice of the peace, and that the allegations as to the agreement to notify the plaintiff when it would be ready to let bids were not sufficient to constitute a contract which could be enforced. The motion was continued and was heard at the next succeeding term of court, when the motion was allowed and judgment was entered dismissing the action, and the plaintiff appealed, assigning the following errors: (1) The refusal of the court to compel the defendant to give notice, under the special appearance, for the hearing of his motion to dismiss said action for a lack of jurisdiction, and in hearing said motion without notice being given as required by law, over plaintiff's objection. (2) To the judgment as set out in the record, and especially as the court did not find that the demand in the complaint was not made in good faith, but held, either ex mero motu, or upon a demurrer ore tenus by defendant under a special appearance, that the plaintiff could not maintain said action.

Rights Under Contracts

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