Oberly & Newell Lithograph Corp. v. Clark ( 1938 )

Civil action to recover for goods sold to and manufactured for "Clark Knitting Mills."

Under date of 21 July, 1936, Frank Roberson, acting for and on behalf of Clark Knitting Mills, gave the plaintiff an order for certain specifically made "box tops," "bands," "labels" and "riders," a part of which was shipped, and the remainder, valued at $460, while manufactured as per instructions, has never been ordered out, but has been tendered for delivery.

There is evidence that the defendant owned the Clark Knitting Mills and was operating the mill in 1936.

The evidence on behalf of the defendant is to the effect that George and Frank Roberson operated the mill; that the defendant loaned them money, and that he, the defendant, neither owned the business nor operated it.

From a directed verdict for plaintiff and judgment thereon, the defendant appeals, assigning errors. The evidence is not all one way. It is conflicting on the issue of defendant's liability. It was error, therefore, for the court to instruct the jury peremptorily in favor of the plaintiff. Brooks v. Ins. Co.,211 N.C. 274, 189 S.E. 787. The rule is, that where the evidence is conflicting, or if diverse inferences may reasonably be drawn therefrom, some favorable to the plaintiffs and others favorable to the defendant, the cause should be submitted to the jury for final determination. In re West,212 N.C. 189, 193 S.E. 134; Hobbs v. Mann, 199 N.C. 532,155 S.E. 163.

For the error, as indicated, a new trial must be awarded. It is so ordered.

New trial.