{
  "id": 8570931,
  "name": "PERFECTING SERVICE COMPANY, a Corporation v. PRODUCT DEVELOPMENT AND SALES COMPANY, a Corporation and RADIATOR SPECIALTY COMPANY, a Corporation",
  "name_abbreviation": "Perfecting Service Co. v. Product Development & Sales Co.",
  "decision_date": "1965-03-17",
  "docket_number": "",
  "first_page": "79",
  "last_page": "81",
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      "cite": "264 N.C. 79"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "217 N.C. 407",
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      "cite": "7 S.E. 2d 547",
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      "reporter": "S.E.2d",
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    {
      "cite": "217 N.C. 319",
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      "cite": "261 N.C. 660",
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      "cite": "259 N.C. 400",
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  "last_updated": "2023-07-14T15:18:06.877661+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "PERFECTING SERVICE COMPANY, a Corporation v. PRODUCT DEVELOPMENT AND SALES COMPANY, a Corporation and RADIATOR SPECIALTY COMPANY, a Corporation."
    ],
    "opinions": [
      {
        "text": "Per Cueiam.\nThis is the third appeal we have heard in this cause. The action was instituted in 1957. It came to trial in February 1962, and verdict and judgment were favorable to plaintiff. Defendants appealed and a new trial was granted. Service Co. v. Sales Co., 259 N.C. 400, 131 S.E. 2d 9. In January 1964 the superior court sustained plaintiff\u2019s demurrer to the cross-action and counterclaim set out in the Third Amended Answer of defendant, Radiator Specialty Company (Radiator). Radiator appealed and the ruling of the trial judge on the demurrer was affirmed. Service Co. v. Sales Co., 261 N.C. 660, 136 S.E. 2d 56. The pleadings of the parties and the law applicable thereto are set out at length in the opinions on the first and second appeals.\nThe second opinion states that \"Radiator, if so advised, may move to amend its answer so as to set out separately in clear and unambiguous terms the facts upon which it relies for a counterclaim against plaintiff for breach of express contract for engineering, designing and fabricating a model.\u201d Radiator apparently interpreted this statement as an adjudication that it might as of right file a counterclaim at any time. If so, it was in error. The comment was nothing more than a reminder that it might move in superior court for permission to amend in accordance with the rules of procedure set out in the statutes and decided cases. Scott v. Harrison, 217 N.C. 319, 7 S.E. 2d 547.\nThe second opinion in this cause was issued in May 1964. On 22 October 1964 Radiator, without notice or leave of court, filed counterclaim with the clerk of superior court. Plaintiff demurred and moved to strike. At session Radiator moved the court to allow the filing of the counterclaim as an amendment to its Third Amended Answer. The court \u201cin its discretion\u201d denied the motion to thus amend, and, apparently to avoid still another appeal in the event the ruling on the motion to amend should be overruled, sustained the demurrer and \u2022motion to strike.\nThe motion of Radiator to amend was addressed to the discretion of the court and the court\u2019s decision thereon is not subject to review \u2014 there is no showing or contention that the court abused its discretion. G.S. 1-125; G.S. 1-131; G.S. 1-141; G.S. 1-163; Cody v. Hovey, 217 N.C. 407, 8 S.E. 2d 479; 219 N.C. 369, 14 S.E. 2d 30; Hardy v. Mayo, 224 N.C. 558, 31 S.E. 2d 748; 1 McIntosh: North Carolina Practice and Procedure, \u00a7\u00a7 1282, 1283, pp. 508-711. Furthermore, the inclusion of most of the matters alleged in the counterclaim violates the law of the case as declared in the former opinions.\nAffirmed.",
        "type": "majority",
        "author": "Per Cueiam."
      }
    ],
    "attorneys": [
      "Wardlow, Knox, Caudle & Wade for plaintiff appellee.",
      "Weinstein, Waggoner & Stwrges for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "PERFECTING SERVICE COMPANY, a Corporation v. PRODUCT DEVELOPMENT AND SALES COMPANY, a Corporation and RADIATOR SPECIALTY COMPANY, a Corporation.\n(Filed 17 March, 1965.)\n1. Appeal and Error \u00a7 59; Pleadings \u00a7 24\u2014\nA statement in a decision of the Supreme Court that a party might move to amend a particular pleading for a specific purpose does not import that such party may amend as a matter of right at any time, but only that such party may move for permission to amend in accordance with set procedure.\n2. Pleadings \u00a7 24\u2014\nA motion to be allowed to amend is addressed to the discretion of the court, and the court\u2019s decision thereon is not subject to review in the absence of a showing of abuse of discretion.\nAppeal by defendant, Radiator Specialty Company, from Walker, S. J., October 26, 1964, \u201cC\u201d Non-jury Civil Session of MeCKlenbttRg.\nWardlow, Knox, Caudle & Wade for plaintiff appellee.\nWeinstein, Waggoner & Stwrges for defendant appellant."
  },
  "file_name": "0079-01",
  "first_page_order": 115,
  "last_page_order": 117
}