Webber v. McCoy Lumber Co. ( 1983 )

WELLS, Judge.

We note at the outset that all of defendant’s assignments of error relate to plaintiffs claim and no question is argued with regard to defendant’s counterclaim.

In its brief, defendant contends that there was insufficient evidence to establish an assignment by Eastern Forest Products to plaintiff of its contract with defendant; that, therefore, it was incumbent upon plaintiff to plead and to establish by competent evidence that he was the “real party in interest;” and that plaintiff failed to establish this.

We have reviewed the evidence that was before Judge Helms and find it supports his findings and conclusion that there was a valid assignment of the disputed contract to plaintiff. We, therefore, do not reach the questions raised by defendant regarding whether it was incumbent upon plaintiff to plead and prove that he was the “real party in interest,” and we affirm the judgment of Judge Helms. See generally Shuford, North Carolina Practice and Procedure (2nd Ed.), Sections 17-3 and 17-5.

Findings of fact made by the trial judge in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support them, although the evidence might have supported findings to the contrary. Henderson County v. Osteen, 297 N.C. 113, 254 S.E. 2d 160 (1979); Williams v. Insurance Co., 288 N.C. 338, 218 S.E. 2d 368 (1975).

G.S. 25-2-210(2) applies to the present case and provides:

Unless otherwise agreed all rights of either seller or buyer can be assigned except where the assignment would materially change the duty of the other party, or increase materially the burden or risk imposed on him by his contract, or impair materially his chance of obtaining return performance. A right to damages for breach of the whole contract, or a right arising out of the assignor’s due performance of his entire obligation can be assigned despite agreement otherwise.

At trial, plaintiff testified to the existence of an agreement between Eastern Forest Products and himself by which he would handle certain orders. Plaintiff testified that, pursuant to this agreement he received and took over defendant’s purchase order to Eastern. Plaintiff bought lumber from a mill and delivered it to defendant’s customer. Plaintff s son, who was a manager in one of plaintiffs offices, testified that defendant’s purchase order was assigned to plaintiff for fulfillment and invoicing. This evidence is sufficient to support findings number 4 and 9 in which the court found that defendant’s purchase order was assigned to plaintiff and that defendant is indebted to plaintiff for the sale price. These findings, in turn, support the court’s conclusion that there was an assignment and that defendant is indebted to plaintiff.

The judgment of the trial court must be and is

Affirmed.

Judges Hedrick and Phillips concur.