Harnett Transfer, Inc. v. Peterson , 37 N.C. App. 56 ( 1978 )

MARTIN, Judge.

Plaintiff contends that the trial court erred in failing to instruct the jury relative to two substantive features of the case. Specifically, he argues that justification for prevention of performance of a contract and repudiation as breach of contract were material aspects of the case arising on the evidence which should have been brought to the jury’s attention. We must agree.

It is familiar learning that the trial court has a duty to charge the law applicable to the substantive features of the case arising on the evidence without special request and to apply the law to the various factual situations presented by the conflicting evidence. Griffin v. Watkins, 269 N.C. 650, 153 S.E. 2d 356 (1967). In the instant case, the evidence disclosed that plaintiff took possession of defendant’s tractor trailer, while it was parked in plaintiffs lot in Raleigh, thereby preventing defendant’s performance of the subject contract. The court instructed the jury to the effect that such conduct by plaintiff, without justification, would amount to plaintiff’s breaching the contract. The evidence also disclosed that defendant’s actions in bringing the tractor trailer back to Raleigh were contrary to his instructions to proceed to Florida; that once in Raleigh, defendant never contacted or notified anyone connected with plaintiff concerning his intentions with respect to the contract or the tractor trailer; and that defendant was personally indebted to George Hodges, president of plaintiff corporation, for the purchase price of the tractor trailer. We are of the opinion that this evidence was sufficient to raise a real question as to whether plaintiff’s conduct was justified. The court’s instruction on “prevention of performance” was insufficient on the question of justification, and its failure further to charge on justification was prejudicial error.

Moreover, we also agree with plaintiff’s contention that evidence of defendant’s bringing the tractor trailer back to Raleigh, apparently abandoning it there, and failing to notify plaintiff of his intentions regarding further performance of the contract was sufficient to require submission to the jury of an instruction explaining repudiation as a breach of contract.

Accordingly, the trial court’s failure to charge on substantial features of the case constitutes error for which plaintiff is entitled to a new trial.

Although plaintiff’s remaining assignments of error may have merit, we refrain from any discussion thereof as they may not arise again on a new trial.

New trial.

Judges Morris and Vaughn concur.