{
  "id": 8527072,
  "name": "PLYMOUTH FERTILIZER COMPANY, INC. v. RODERICK EARL SELBY, SR., d/b/a RODDY SELBY & SONS",
  "name_abbreviation": "Plymouth Fertilizer Co. v. Selby",
  "decision_date": "1984-04-17",
  "docket_number": "No. 832SC539",
  "first_page": "681",
  "last_page": "686",
  "citations": [
    {
      "type": "official",
      "cite": "67 N.C. App. 681"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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    "char_count": 8586,
    "ocr_confidence": 0.825,
    "sha256": "a07098145017a250c7f58700780dc9b81059f3790365733bfd47db0f685f12f0",
    "simhash": "1:aef956d52627e376",
    "word_count": 1502
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  "last_updated": "2023-07-14T17:10:21.361774+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge JOHNSON concurs in the result."
    ],
    "parties": [
      "PLYMOUTH FERTILIZER COMPANY, INC. v. RODERICK EARL SELBY, SR., d/b/a RODDY SELBY & SONS"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant has so ignored the North Carolina Rules of Appellate Procedure as to render this appeal subject to dismissal. We suspend the Rules, however, to prevent manifest injustice and to expedite a final decision in this case. Rule 2, North Carolina Rules of Appellate Procedure.\nThe record discloses that after the trial Judge Bruce and the attorneys representing plaintiff and defendant engaged in the following colloquy:\nCOURT: You got opening and closing arguments.\nMr. Neumann: I\u2019ll waive the opening.\nCOURT: Let me ask you this, would you prefer to submit it on Briefs?\nMr. Neumann: I certainly wouldn\u2019t object to that.\nMr. CHESNUTT: What is the Court\u2019s pleasure.\nCOURT: Well, I\u2019d rather you submit it on Briefs because I\u2019m hungry and I got to be back here at two o\u2019clock.\nMr. CHESNUTT: Judge, where do you want us to mail them?\nCOURT: To \u2014 do you stipulate that the Judgment can be signed out of Session, out of County?\nMr. CHESNUTT: Yes sir.\nMr. Neumann: We stipulate.\nCOURT: Mail them to P. 0. Box 792, Mount Olive, 28365.\nMr. Neumann: You give us a time limit to have these submitted to you?\nCOURT: Well, what do you all want to do? I\u2019d rather you not wait too long until I forget everything about it . . .\n(Emphasis added.)\nThe dialogue quoted above took place on 8 November 1982. The judgment was signed on 11 February 1983. The record does when flip \u201cbriefs\u201d were sent to Judge Bruce, but the findings of fact made by him and the conclusions of law drawn therefrom demonstrate that the attorneys waited \u201ctoo long.\u201d\nThe evidence does not support the findings of fact, and the findings do not support the conclusions of law. The evidence adduced at trial discloses that in 1978 the defendant and his two sons, Roddy Selby, Jr., and Vance Selby, purchased agricultural supplies consisting primarily of fertilizer from the plaintiff. These purchases were charged to the account of \u201cRoddy Selby and Sons.\u201d Yet Judge Bruce found as a fact that in 1978 \u201cPlaintiff extended credit to Defendant under the name of Selby Farms for materials purchased.\u201d The evidence at trial discloses that on 22 January 1979 the defendant paid the \u201cRoddy Selby and Sons\u201d account in full. Yet Judge Bruce found as a fact that \u201c[o]n January 22, 1979, Defendant paid the then outstanding balance owed to Plaintiff in the name of Selby Farms.\u201d\nIn addition to finding facts not supported by the evidence, the court failed to make findings resolving critical issues raised by the evidence. While the court found that \u201cvarious purchases of fertilizer and chemicals were made on the account of Roddy Selby and Sons subsequent to February 5, 1979,\u201d Judge Bruce failed to designate the identity of the persons making the \u201cvarious purchases\u201d referred to. The record shows that the defendant\u2019s entire defense was based on his contention that shortly after he paid the account in full on 22 January 1979, he notified plaintiffs agent that he was \u201cbowing out,\u201d and that his sons would henceforth be operating their own business. In this regard defendant testified:\nQ. Now, did you have any discussion with Mr. Dunbar in January or early months of 1979 relative to your account?\nA. Yes sir. As soon as we found out the boys had acquired a loan to buy the property that we had cultivated in \u201978, I closed the account out and I saw Jimmy, I believe it was down at O\u2019Neals\u2019s.\nQ. Is that Jimmy Dunbar?\nA. Yes sir. Me and the two boys were together and I notified him at that time that I no longer would be with the boys, that they would be standing alone because they had their own credit established at Farmer\u2019s Home Administration.\nQ. And had they purchased their own land?\nA. Yes sir.\nQ. And where did that conversation take place?\nA. At O\u2019Neal\u2019s Cafe, I guess it is, at Rose Bay.\nQ. And do you remember what the occasion was when you saw Mr. Dunbar?\nA. Yes, we had gone to Swan Quarter Equipment Company to pick up some parts for one of the tractors, I believe and coming back by the boys wanted to stop and see Jimmy about establishing credit with him and I told him then that I would be bowing out.\nQ. You told who?\nA. Jimmy.\nQ. Now subsequent to January 19, 1979, that\u2019s the date of that check, did you charge anything with Plymouth Fertilizer Company, Inc. in your name?\nA. What before that day?\nQ. After that?\nA. No, not after that day. No.\nQ. Did you authorize your sons to charge anything in your name at Plymouth Fertilizer Company, Inc. after . . .\nA. No sir, not in my name itself. No.\nQ. You did not?\nA. No.\nQ. Did you \u2014 did Jimmy \u2014 did you tell Jimmy Dunbar that you were not authorizing any further charges in your name or on your account?\nA. I told him to delete my name completely off the ledger that I was going to start doing my business with Cargill, Incorporated in Belhaven, which I did.\nQ. Did you \u2014 did you charge your stuff with Cargill subsequent to January 19th, 1979?\nA. Right.\nDefendant\u2019s sons corroborated his testimony in regard to his conversation with Jimmy Dunbar. When Mr. Dunbar was examined as to whether defendant notified him of his withdrawal from the business, he testified as follows:\nQ. Jimmy, do you recall meeting with Mr. Selby and his two sons down there at Rose Bay sometime in early February?\nA. I don\u2019t remember it.\nQ. Do you remember Mr. Selby ever coming to you and telling you he wasn\u2019t going to be responsible for this account?\nA. No sir.\nMR. NEUMANN: Nothing further.\nRecross Examination of Mr. Dunbar by Mr. Ches-NUTT:\nQ. Are you . . .\nCOURT: Are you denying such a meeting took place?\nA. I\u2019m denying I don\u2019t remember it.\nCOURT: Well, you don\u2019t remember having any conversation with this man at Rose Bay at any time?\nA. Not on that date. No sir.\nCOURT: Well, have you ever had a conversation with him at Rose Bay?\nA. Not that I know of.\nThe court made no finding of fact as to this matter.\nPlaintiff offered evidence tending to show that in January 1979 defendant\u2019s sons asked that the name of the account be changed from \u201cRoddy Selby and Sons\u201d to \u201cSelby Brothers.\u201d Plaintiffs agent testified that, \u201c[A]t that time we told them that if their father would sign the personal guaranty that he would be responsible for the account, we would change it. Otherwise we would leave it like it is.\u201d The trial court made no finding whatsoever as to this matter.\nSince we have already stated that the evidence does not support the findings, it seems unnecessary to point out that the findings do not support the conclusions. But lest upon remand the parties or the court become even more confused, we want to point out that we are uncertain any construction of the evidence would support the conclusions of law made by Judge Bruce.\nBecause resolution of the issues raised by the pleadings and the evidence depends considerably upon the credibility of the witnesses, we believe the interests of justice require us, in the exercise of our discretion, to order a new trial in open court.\nFor the reasons stated, the judgment is vacated and the cause is remanded to Superior Court for a new trial.\nNew trial.\nJudge Hill concurs.\nJudge JOHNSON concurs in the result.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Hutchins, Cockrell & Neumann, P.A., by Howard P. Neu-mann, for plaintiff, appellee.",
      "Stubbs & Chesnutt, P.A., by Marcus Chesnutt and Jerry F. Waddell, for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "PLYMOUTH FERTILIZER COMPANY, INC. v. RODERICK EARL SELBY, SR., d/b/a RODDY SELBY & SONS\nNo. 832SC539\n(Filed 17 April 1984)\nAppeal and Error \u00a7 57.5\u2014 evidence not supporting findings \u2014 findings of fact not supporting conclusion\nIn an action instituted by plaintiff to recover a sum of money plus interest on an alleged account which was tried before a judge without a jury, the evidence did not support the findings of fact, and the findings did not support the conclusions of law. Rather than opening and closing arguments, the attorneys submitted their arguments in \u201cbriefs\u201d and the judgment was not signed until two months after the end of the trial. Several important issues were not addressed by the findings of fact and the evidence did not support other findings of fact.\nJudge Johnson concurs in the result.\nAPPEAL by defendant from Bruce, Judge. Judgment entered 11 February 1983 in Superior Court, WASHINGTON County. Heard in the Court of Appeals 3 April 1984.\nThis is a civil action wherein plaintiff seeks to recover of defendant the sum of $7,525.66 plus interest on an alleged account. After a trial before the judge without a jury, the judge made detailed findings and conclusions and entered a judgment that plaintiff have and recover of defendant the sum of $9,549.93 plus interest. Defendant appealed.\nHutchins, Cockrell & Neumann, P.A., by Howard P. Neu-mann, for plaintiff, appellee.\nStubbs & Chesnutt, P.A., by Marcus Chesnutt and Jerry F. Waddell, for defendant, appellant."
  },
  "file_name": "0681-01",
  "first_page_order": 713,
  "last_page_order": 718
}