{ "id": 8528137, "name": "WHITAKER'S INC. OF SUMTER v. NICOL ARMS, a North Carolina Limited Partnership; ALMONT E. LINDSEY, General Partner; and GEORGE MOROSANI, General Partner", "name_abbreviation": "Whitaker's Inc. v. Nicol Arms", "decision_date": "1989-04-18", "docket_number": "No. 8830SC766", "first_page": "487", "last_page": "491", "citations": [ { "type": "official", "cite": "93 N.C. App. 487" } ], "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": [ { "cite": "233 S.E. 2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "292 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570116 ], "year": 1977, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0451-01" ] }, { "cite": "146 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "393", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "266 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561250 ], "year": 1966, "pin_cites": [ { "page": "493", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0489-01" ] }, { "cite": "133 S.E. 2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "162" } ], "opinion_index": 0 }, { "cite": "260 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575272 ], "year": 1963, "pin_cites": [ { "page": "472-73" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0470-01" ] }, { "cite": "221 S.E. 2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "493" } ], "opinion_index": 0 }, { "cite": "289 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566827 ], "year": 1976, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0109-01" ] }, { "cite": "375 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "170" }, { "parenthetical": "rules regarding dismissal of plaintiff's claim apply to dismissal of defendant's counterclaim" }, { "page": "170" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527343 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "544" }, { "page": "543-44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0535-01" ] }, { "cite": "150 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "268 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562662 ], "year": 1966, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0426-01" ] }, { "cite": "192 S.E. 2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "591" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 466", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552411 ], "year": 1972, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0466-01" ] }, { "cite": "284 S.E. 2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "700" }, { "page": "700" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 158", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526892 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "161-62" }, { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0158-01" ] }, { "cite": "136 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "261 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575261 ], "year": 1964, "pin_cites": [ { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0684-01" ] }, { "cite": "330 S.E. 2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "667", "parenthetical": "quoting Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E. 2d 33, 34 (1964)" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 325", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525814 ], "year": 1985, "pin_cites": [ { "page": "329", "parenthetical": "quoting Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E. 2d 33, 34 (1964)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0325-01" ] } ], "analysis": { "cardinality": 527, "char_count": 9311, "ocr_confidence": 0.768, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20560310659038422 }, "sha256": "abb60c61518d032aa80d77dd75b6023a450417416c2ec8f64e0438ffc7c9ce01", "simhash": "1:5b105c6636b45af6", "word_count": 1500 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Greene concur." ], "parties": [ "WHITAKER\u2019S INC. OF SUMTER v. NICOL ARMS, a North Carolina Limited Partnership; ALMONT E. LINDSEY, General Partner; and GEORGE MOROSANI, General Partner" ], "opinions": [ { "text": "BECTON, Judge.\nThis breach of contract action was brought by plaintiff Whitaker\u2019s, Inc., a supplier of kitchen and bathroom cabinets (\u201cthe supplier\u201d), against defendant Nicol Arms Limited Partnership (\u201cNicol Arms\u201d), the owner of the apartment complex in which the cabinets were to be installed, and against defendants Almont Lindsey and George Morosani, former and present general partners of Nicol Arms, respectively. Nicol Arms counterclaimed for breach of contract, unfair trade practices, and breach of express and implied warranties. Defendants offered no evidence at trial. A directed verdict was granted in favor of the supplier on the issues of the existence of a contract and damages. The trial judge awarded the supplier $18,155 in damages, and the jury awarded the supplier $4,500 for lost profits.\nDefendants\u2019 primary contention on appeal is that Mr. Lindsey\u2019s signature on the supplier\u2019s purchase order form did not form a contract with Nicol Arms because that signature did not indicate that Mr. Lindsey was signing in a representative capacity. Defendants contend that the trial judge erred by: (1) denying defendants\u2019 directed verdict motions; (2) directing a verdict in the supplier\u2019s favor; and (3) denying defendants\u2019 motions for judgment notwithstanding the verdict and a new trial. Defendants do not challenge the amount of damages awarded. We affirm the judgment.\nI\nDefendants contend that when Mr. Lindsey signed the purchase order in his own name, he acted either individually or as president of A.C.R.S., Ltd. (the entity responsible for construction of the apartment complex), and not as general partner of Nicol Arms. Thus, defendants argue Nicol Arms was not a party to the contract with the supplier, and, as a result, defendants were entitled to a directed verdict as a matter of law. We disagree.\nA. Contract Established by Pleadings\nIn our view, the question whether Mr. Lindsey entered into a contract with the supplier on behalf of Nicol Arms was settled by the parties\u2019 pleadings.\nIn its Answer, Nicol Arms asserted counterclaims against the supplier, alleging that a contract existed between them, and that the contract was breached. We adopt the settled view that \u201c \u2018[a] party is bound by [its] pleadings and, unless withdrawn, amended, or otherwise altered, the allegations contained in all pleadings ordinarily are conclusive against the pleader. [A party] cannot subsequently take a position contradictory to [its] pleadings.\u2019 \u201d Joe Newton, Inc. v. Tull, 75 N.C. App. 325, 329, 330 S.E. 2d 664, 667 (1985) (quoting Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E. 2d 33, 34 (1964)). Accord Rollins v. Junior Miller Roofing Co., 55 N.C. App. 158, 161-62, 284 S.E. 2d 697, 700 (1981); Neff v. Queen City Coach Co., 16 N.C. App. 466, 472, 192 S.E. 2d 587, 591 (1972).\nIn addition, in the supplier\u2019s Reply to the counterclaims, the supplier admitted entering into a contract with Nicol Arms. \u201cThe effect of a judicial admission is to establish the fact for the purposes of the case and to eliminate it entirely from the issues to be tried.\u201d Rollins, 55 N.C. App. at 162, 284 S.E. 2d at 700; accord Champion v. Waller, 268 N.C. 426, 428, 150 S.E. 2d 783, 785 (1966); Hedgecock Builders Supply Co. v. White, 92 N.C. App. 535, 544, 375 S.E. 2d 164, 170 (1989). Thus, we hold that the question whether a contract existed between Nicol Arms and the supplier was not an issue to be resolved at trial.\nAlthough neither party raises the point, Nicol Arms\u2019 motion to voluntarily dismiss the counterclaims, made after the parties rested, does not change the result in this case. First, it is not clear from the record whether the trial judge ever ruled on that motion. See N.C. Gen. Stat. Sec. 1A-1, R. Civ. P. 41(a), (c) (1983) (counterclaim may be voluntarily dismissed after party rests only with leave of court). Second, the trial judge had already implicitly ruled against Nicol Arms on its counterclaim by denying defendants\u2019 motions for directed verdict.\nIn our view, it would be manifestly unjust to permit defendants at that late hour in the trial to withdraw the allegations in the counterclaims, thereby raising anew the settled issue of the existence of a contract. We believe that the judicial reluctance to allow a plaintiff to withdraw at the last stages of litigation should extend as well to a defendant who wishes to withdraw its counterclaims. See id. (rules regarding dismissal of plaintiff\u2019s claim apply to dismissal of defendant\u2019s counterclaim); cf. McCarley v. McCarley, 289 N.C. 109, 113, 221 S.E. 2d 490, 493 (1976) (\u201c. . . it would be manifestly unjust to allow a plaintiff, who comes into court upon solemn allegations, which, if true, entitle defendant to some affirmative relief against the plaintiff, to withdraw, ex parte, the allegations after defendant has demanded the relief to which they entitle him\u201d); N.C. Gen. Stat. Sec. 1A-1, comment to R. Civ. P. 41 (prior to enactment of Rule 41, permitting the plaintiff to dismiss its case \u201cjust as the court was about to direct a verdict for defendant,\u201d after defendant had already incurred great expense in preparing for trial, \u201cwas an outrageous imposition not only on the defendant but also on the court\u201d). We conclude that Nicol Arms\u2019 counterclaims established the existence of the contract.\nB. Partnership Obligation\nWe additionally conclude that under the principles of partnership liability Nicol Arms was bound by the purchase order signed by Mr. Lindsey.\nThis court explained in Hedgecock that \u201c[a] partnership will be liable for a contract entered in a partner\u2019s own name if: (1) \u2018the partner was acting on behalf of the partnership in [entering the contract] and was authorized to so act\u2019; or (2) \u2018the partners, with knowledge of the transaction, thereafter ratified the acts of their partner.\u2019 \u201d 92 N.C. App. at 543-44, 375 S.E. 2d at 170 (quoting Brewer v. Elks, 260 N.C. 470, 472-73, 133 S.E. 2d 159, 162 (1963)) (emphasis supplied). Both conditions were satisfied here.\nFirst, the uncontradicted evidence adduced at trial established that Mr. Lindsey signed on behalf of Nicol Arms. Witnesses for the supplier testified that Mr. Lindsey represented that he acted on behalf of the Nicol Arms partnership, and that he had authority to do so. Furthermore, the order form indicated that the cabinets were being purchased for and delivered to the Nicol Arms apartments. Defendants presented no evidence to the contrary and raised no challenge to the credibility of the supplier\u2019s witnesses.\nSecond, the Nicol Arms partnership effectively ratified the contract by bringing suit on it. \u201cOne of the most unequivocal methods of showing ratification of an agent\u2019s ... act is by bringing an action ... on the . . . act with full knowledge of the material facts.\u201d Patterson v. Lynch, 266 N.C. 489, 493, 146 S.E. 2d 390, 393 (1966) (citation omitted).\nViewing the evidence presented in a light most favorable to the supplier, see, e.g., Farmer v. Chaney, 292 N.C. 451, 453, 233 S.E. 2d 582, 584 (1977), we conclude that the trial judge properly denied defendants\u2019 motions for a directed verdict.\nThis assignment of error is overruled.\nII\nWe have already held there was no question for the jury to resolve regarding the existence of the contract between Nicol Arms and the supplier. Thus, the supplier was entitled to a directed verdict as a matter of law, and defendants were not entitled to judgment notwithstanding the verdict or to a new trial. Accordingly, we overrule defendants\u2019 remaining assignments of error.\nWe hold that the trial below was without error.\nAffirmed.\nJudges Parker and Greene concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Dees, Giles, Tedder, Tate & Gaylord, by T. M. Gaylord, Jr., for plaintiff-appellee.", "Haire & Bridgers, P.A., by R. Phillip Haire, for defendant-appellants." ], "corrections": "", "head_matter": "WHITAKER\u2019S INC. OF SUMTER v. NICOL ARMS, a North Carolina Limited Partnership; ALMONT E. LINDSEY, General Partner; and GEORGE MOROSANI, General Partner\nNo. 8830SC766\n(Filed 18 April 1989)\n1. Pleadings \u00a7 37.1\u2014 existence of contract \u2014 establishment by pleadings\nThe existence of a contract between the parties was established by the parties\u2019 pleadings where defendant asserted counterclaims against plaintiff alleging that a contract existed between them and that the contract was breached, and plaintiff judicially admitted entering into a contract with defendant in its reply to the counterclaims.\n2. Rules of Civil Procedure \u00a7 41.2\u2014 voluntary dismissal after parties rested \u2014manifest unjustness\nIt would be manifestly unjust to permit defendant to voluntarily dismiss its counterclaims and thereby raise anew the settled issue of the existence of a contract after the parties had rested and the trial judge had implicitly ruled against defendant on its counterclaims by denying defendant\u2019s motions for directed verdict.\n3. Partnership \u00a7 4\u2014 purchase order by partner \u2014 liability of partnership\nA limited partnership was bound by a purchase order signed by a general partner where the uncontradicted evidence showed that the partner signed on behalf of the partnership and had authority to do so, and where the partnership effectively ratified the contract by bringing suit on it.\nAPPEAL by defendants from Marlene Hyatt, Judge. Judgment entered 10 December 1987 in Superior Court, JACKSON County. Heard in the Court of Appeals 16 February 1989.\nDees, Giles, Tedder, Tate & Gaylord, by T. M. Gaylord, Jr., for plaintiff-appellee.\nHaire & Bridgers, P.A., by R. Phillip Haire, for defendant-appellants." }, "file_name": "0487-01", "first_page_order": 517, "last_page_order": 521 }