#### R. FRANK SEAY v. AMERICAN SAVINGS LIFE INSURANCE COMPANY.

(Filed 25 May, 1938.)

Appeal and Error § 49 — When Supreme Court is evenly divided in opinion the judgment of lower court becomes law of the case and is controlling.

When the judgment of the lower court is affirmed on appeal because the Supreme Court is evenly divided in opinion, the judgment of the lower court becomes the law of the case and is determinative of the rights of the parties upon a second action instituted by the same plaintiff on the same contract against the successor of the defendant company.

Appeal by plaintiff from Bivens, J., at March-April, 1938, Civil Term, of Guileoed. Reversed.

This action was brought by plaintiff against defendant to recover $1,190 commissions on insurance premium renewals. The defendant denied liability.

In the agreed statement of facts is the following: “10. That if the plaintiff, under the terms of the contracts in (Question, is entitled to commissions or renewals paid the Sentinel Life Insurance Company or the defendant after the contract of agency was terminated, and if the plaintiff is entitled to recover against the defendant American Savings Life Insurance Company, then the plaintiff is entitled to recover judgment against the defendant in the sum of $1,190, but if the plaintiff, under the terms of the contracts, is not entitled to commissions on renewals paid the Sentinel Life Insurance Company or the-defendant after the contract of agency was terminated, or if the plaintiff is not entitled to recover of the defendant American Savings Life Insurance Company, then the plaintiff is not entitled to recover judgment against the defendant in any amount, and the plaintiff’s action should be dismissed, and he should be taxed with the costs.”

The judgment of the municipal court was as follows: “This cause coming on to be heard, and being heard upon pleadings, the agreed statement of facts and argument of counsel, and after consideration of the same, the court being of the opinion that upon said agreed statement of facts that the plaintiff is not entitled to recover in this action. It is therefore, upon motion of attorneys for defendant, ordered, adjudged and decreed that the plaintiff take nothing by his action, and that the same be dismissed, and that the costs be taxed against the plaintiff. This 24 January, 1938. Lewis E. Teague, judge municipal court of the city of High Point.”

To the signing of the foregoing judgment, the plaintiff excepted, assigned error, and appealed to the Superior Court of Guilford County.

The judgment of the Superior Court was as follows: “This cause *661coming on. to be beard on appeal from a judgment signed in tbe municipal court of tbe city of Higb Point in said cause and being beard upon tbe plaintiff’s assignments of error No. 1 and No. 2 as appearing in tbe case on appeal, and it appearing to tbe court tbat said exceptions and assignments of error should be overruled and tbe judgment of tbe trial court sustained: It is therefore, upon motion of attorneys for tbe defendant, ordered, adjudged and decreed tbat said assignments of error be and they are each hereby overruled, and tbe judgment of tbe High Point municipal court is sustained and tbe costs of this appeal taxed against tbe plaintiff. This 1 April, 1938. E. C. Bivens, Judge Presiding, 12th Judicial District.”

To tbe overruling of tbe plaintiff’s assignments of error, and each of them, and to tbe signing of tbe foregoing judgment, tbe plaintiff excepted, assigned error, and appealed to tbe Supreme Court.

R. T. Pichens and J ones ■& Fisher for plaintiff.

Roberson, Haworth & Reese for defendant.

Per Curiam.

In tbe case of Seay v. Ins. Co., 208 N. C., 832, is tbe following: “Civil action to recover agent’s commissions on insurance premium renewals, ‘paid to and accepted by tbe (defendant) company, while this (agency) contract is in force . . . limit 9 years.’ Tbe defendant sought to terminate its agency contract with tbe plaintiff, prior to tbe expiration of tbe ninth renewal of some of tbe policies written by plaintiff. This suit is to recover commissions on such renewals up to tbe 9th on each policy. Judgment of nonsuit was entered in tbe municipal court of tbe city of Higb Point, which was reversed on appeal to tbe Superior Court of Guilford County. From tbe ruling of tbe Superior Court tbe defendant appeals, assigning error. (Per Curiam) : Tbe Court being evenly divided in opinion, Glarhson, J., not sitting, tbe judgment of tbe Superior Court is affirmed and stands, according to tbe uniform practice of appellate courts, as tbe decision in this case, without becoming a precedent,” citing many authorities.

This action is being prosecuted by tbe same plaintiff, against tbe successor of tbe same defendant, for recovery under tbe same contract as tbat considered in tbe former action. Tbe plaintiff pleads res judi-cata. Tbe judgment of tbe Superior Court in tbe former action, unchanged on appeal, is determinative of tbe plaintiff’s right to recover under tbe contract in this action, and hence tbe judgment of nonsuit is reversed.

We think what was said in tbe above case is applicable to tbe present action, and tbe judgment of tbe court below is

Reversed.