Pinehurst Warehouses, Inc. v. A. Burker & Co., 223 N.C. 853 (1943)

May 5, 1943 · Supreme Court of North Carolina

223 N.C. 853

PINEHURST WAREHOUSES, INC., v. A. BURKER & COMPANY, INC.

(Filed 5 May, 1943.)

Appeal by defendant from Warliclc, J., at November Term, 1942, of Richmond.

No error.

Civil action on account for merchandise delivered by plaintiff to one S. H. Cochran in which plaintiff alleges that the merchandise was sold to or on the credit of defendant. The president of defendant instructed tbe agent of the defendant to “tell Britt to go ahead and let him have it, we’ll work it out somehow.” Defendant denies that any instructions were so given and pleads tbe statute of frauds.

There was a verdict for plaintiff. From judgment thereon defendant appealed.

W. II. Leland McKeithan and J ones & J ones for plaintiff, appellee.

Fred W. Bynum for. defendant, appellant.

Per Curiam.

The only material assignment of error in the record is directed to the refusal of the court below to dismiss as of nonsuit. The Court, Schenclc, J., not sitting, being evenly divided on the merits of this assignment of error, which involves the force and effect of the instructions given plaintiff, the judgment of the Superior Court is affirmed in accord with the usual practice in such cases, and stands as the decision in this case without becoming a precedent. Howard v. Coach Co., 216 N. C., 799, 4 S. E. (2d), 449; Pafford v. Construction Co., 218 N. C., 782, 11 S. E. (2d), 548; Smith v. Furniture Co., 221 N. C., 536, 19 S. E. (2d), 17.

No error.