Hunter Manufacturing & Commission Co. v. Leak Manufacturing Co., 201 N.C. 823 (1931)

July 2, 1931 · Supreme Court of North Carolina

201 N.C. 823

HUNTER MANUFACTURING AND COMMISSION COMPANY v. LEAK MANUFACTURING COMPANY.

(Filed 2 July, 1931.)

Appeal and Error J d — Where Supreme Court is evenly divided the judgment of the lower court will he affirmed.

Where the Supreme Court is evenly divided in opinion, one Justice not sitting, the judgment of the lower court will be affirmed without becoming a precedent.

Appeal by plaintiff from Stack, J., at Chambers, by agreement, 24 September, 1930. From EiciimoND.

Civil action to recover commissions or balance alleged to be due on selling agent’s agreement.

The case was made to turn on whether the plaintiff was entitled to commissions of 5% on sales of defendant’s goods, as it alleged, or only 4%, as the defendant contended.

By consent, a reference was ordered and the matter heard by Hon. A. A. F. Seawell, who found the facts and reported the same, together with his conclusions of law, to the court.

The referee found for the plaintiff, but on exceptions duly filed to his report, the judge of the Superior Court reversed the findings and conclusions of the referee and entered judgment for the defendant. The plaintiff appeals, assigning errors.

Franlc P. Hobgood, Ozmer L. Henry and O. J. Weber for plaintiff.

F. W. Byrmrn and Varser, Lawrence & McIntyre for defendant.

Pee. Cueiam.

The Court being evenly divided in opinion, Adams, J., not sitting, the judgment of the Superior Court is affirmed and stands as the decision in this particular case, without becoming a precedent for the future. Lawrence v. Bank, 193 N. C., 841, 137 S. E., 427; Miller v. Bank, 176 N. C., 152, 96 S. E., 977; Durham v. R. R., 113 N. C., 240, 18 S. E., 208.

This accords with the uniform practice of appellate courts in cases of equal division of opinion. Jenkins v. Lumber Co., 187 N. C., 864, 123 S. E., 82.

Affirmed.