International Paper Co. v. Multiply Corp.

Campbell, J.

Whiteville claims error in the trial of this case for that:

1. The evidence introduced by Multi-Ply was not sufficient to sustain the cross-action and the judgment as of nonsuit should have been entered.

2. There were errors in the charge of the court.

3. The trial court should have set the verdict aside.

Mr. Manous, President of Multi-Ply, testified that the order for cartons in question was for the benefit of Finishing and he had so informed representatives of International. He further testified that he agreed with Mr. Wallace, President of Whiteville, for Whiteville to purchase the interest of Multi-Ply in Finishing and “assume the remaining debt of Finishing and the bills.” He also testified that Mr. Wallace told Mr. Dalehite of International that this bill would be taken care of. There was other evidence on behalf of Multi-Ply to the effect that the order for the cartons had been placed with International by the plant superintendent of Finishing and that the cartons were used in the business of Finishing. Mr. Wallace on behalf of Whiteville denied using the cartons or agreeing to pay this particular bill to International. A factual issue for the jury was presented. The evidence was ample to support a finding on the second issue in favor of Multi-Ply and there was no error in failing to non-suit the cross-action.

With regard to the judge’s charge to the jury, Whiteville asserts error in that the trial judge in reviewing the evidence referred to evidence offered by International and that this constituted error, for the case brought by International against Whiteville had been non-suited at the close of the plaintiff’s evidence.

A reading of the charge reveals that when the trial judge was reviewing the evidence of Whiteville he said: “Now as to the International Paper Company, their evidence tends to show,” etc. Actually, the trial court by the use of the words “their evidence” was not referring to the evidence introduced by International but instead was reviewing and was referring to the evidence of Whiteville as testified to by Mr. Wallace, the President of Whiteville. We think the jury so understood and was not misled. When taken in context the charge is not objectionable.

Whiteville assigns other errors to the charge of the trial court.

We have reviewed all of these assignments of error and find no merit in them. We do not think anything would be gained by a detailed review and discussion of the charge of the trial court as no novel questions are presented and a detailed discussion would unnecessarily prolong the length of this decision.

There was no error in failing to set the verdict aside.

Setting aside a verdict, where no question of law or legal inference is involved, is a matter within the sound discretion of the trial judge. In the absence of abuse of discretion it is not reviewable on appeal. Pruitt v. Ray, 230 N.C. 322, 52 S.E. 2d 876,

Whiteville shows no. abuse of discretion and instead ties this claimed error to a demurrer ore terms asserted in this Court for the failure of the cross-action of Multi-Ply to state a cause of action.

The answer of Multi-Ply alleges that in March 1964 Multi-Ply and Whiteville entered into an agreement whereby Whiteville would purchase the interest of Multi-Ply in Finishing; that as a part of the purchase price, Whiteville agreed that it would assume and pay all outstanding debts incurred by Finishing and all outstanding debts incurred by Multi-Ply for or on behalf of Finishing; that prior to this agreement Finishing had ordered and received some or all of the merchandise described in the complaint filed by International.

We are of the opinion and hold that this' cross-action filed by Multi-Ply sets forth a cause of action against Whiteville and the demurrer ore terms is overruled.

Affirmed.

Brock and Britt, JJ., concur.