Woodland & Co. v. Southgate Packing Co.

118 S.E. 898, 186 N.C. 116, 1923 N.C. LEXIS 188

• Court: Supreme Court of North Carolina
• Decided: September 26, 1923
• Status: Published

Opinion

Stacy, J.

There was allegation and proof to the effect that plaintiff sold and delivered certain fertilizer to the Southgate Packing Company, a partnership1 composed of T. S. Southgate, G. D. Potter, J. C. Malbon and Elias Etheridge. There was other evidence tending to show that T. S. Southgate was the sole owner of the Southgate Packing Company, and that the fertilizer in question was shipped to and received by said packing company. G. D. Potter, a witness for the defendants, testified that he had been manager of Southgate Packing Company for 12 years, but that the fertilizer here in question was purchased by him individually and not for the packing company.

At this point the court stopped the trial, found as a fact that G. D. Potter was the general agent of Southgate Packing Company, and rendered judgment for the amount of plaintiff’s claim ■ against T. S. South-gate as the sole owner of the packing company. Defendant excepted and appealed.

The judgment appealed from is against T. S. Southgate and not against G. D. Potter, who admitted his individual liability. The jury returned no verdict in the case. There was no agreement that the judge should hear the evidence and find the facts, and the defendants have not waived their right to a jury trial. Hence we think the cause must be remanded for another hearing. Art. I, sec. 13,’State Constitution.

In this jurisdiction, as was tbe rule at common law, it is tbe province of tbe jury to determine tbe facts, and that of tbe trial court to state tbe law. And where tbe testimony is conflicting, as it is here, tbe case presented is one for tbe jury. Bussell v. R. R., 118 N. C., 1098.

New trial.