TEETER v. MANUFACTURING COMPANY.

Nothing in this opinion is to be construed as denying incorporated cities and towns the right to adopt reasonable regulations for the sale of near beer, as recognized and defined in State v. Danenberg, supra.

Let the writ of mandamus issue, requiring the sheriff to accept. the license tax imposed by law.

Reversed.

M. F. TEETER v. THE COLE MANUFACTURING COMPANY.

(Filed 23 December, 1909.)

Contracts, Breach of-Rescission-Intimation of Court-Fragmentary Appeal-Conversion-Measure of Damages.

In an action to recover the purchase price for certain lumber under a contract, it appeared from plaintiff's evidence that he had shipped a carload thereof, and after conversation had between himself and defendant it was ascertained that only a small portion of it came up to the sizes specified, and therefore unfit for defendant's purposes; and on that account it was agreed between the parties that the lumber should be left in the car to be otherwise disposed of, but that defendant thereafter, without plaintiff's knowledge, took from the car certain of the lumber which he found he could use. The lower court intimated that plaintiff could not recover for the contract price of the carload, but only the value of so much as defendant had taken therefrom, with the consequent damages to plaintiff. Plantiff took a nonsuit and appealed. Held, the nonsuit and appeal were premature, and that plaintiff should have excepted and appealed from final judgment; (2) the plaintiff could not recover on the contract: (a) he had not performed it, (b) it had been rescinded by mutual agreement, (c) the action would be for conversion, and the damages the actual value of the lumber taken, with such damage to the carload lot as plaintiff had sustained by defendant's taking a portion thereof and leaving a remnant; (3) that if the contract had not been rescinded, defendant, by taking a part of the lumber, was not bound under the contract to take the remainder which did not come up to it.

APPEAL from Council, J., May Term, 1909, of CABARRUS.

Civil action, to recover the sum of $206.40, on account of a lumber transaction.

After the plaintiff had testified, the court intimated that, taking his evidence in its most favorable view, he would only be entitled to recover the value of such lumber as the defendant had taken from the car of lumber shipped, together with such damages as the plaintiff might have sustained by reason of the de

TEETER v. MANUFACTURING COMPANY.

fendant selecting a portion of the lumber from the car and leaving the other as rejected. Upon such intimation of opinion, the plaintiff excepted and submitted to a nonsuit and appealed to the Supreme Court.

Montgomery & Crowell for plaintiff.

L. T. Hartsell and Burwell & Cansler for defendant.

BROWN, J. 1. We are of opinion that the nonsuit, taken voluntarily by plaintiff, was premature. He should have excepted to the ruling of the court and proceeded with the trial. In any view, he was entitled to a judgment for some amount. We again call attention to repeated rulings of this Court, that "In order to avoid appeals based upon trivial interlocutory decisions, the right thus to proceed (viz., to take a nonsuit and appeal) has been said to apply ordinarily only to cases where the ruling of the court strikes at the root of the case and precludes a recovery by the plaintiff." Hayes v. Railroad, 140 N. C., 131. "An intimation of an opinion by the judge adverse to the plaintiff upon. some proposition of law which does not take the case from the jury, and which leaves open essential matters of fact still to be determined by them, will not justify the plaintiff in suffering a nonsuit and appealing." Midgett v. Mfg. Co., 140 N. C., 361; Merrick v. Bedford, 141 N. C., 504; Hoss v. Palmer, 150 N. C., 17.

2. As the result to plaintiff is the same, whether we dismiss his appeal or affirm the ruling of the trial court, we will pass on the merits of the case, as it may tend to a settlement of the controversy. The plaintiff's complaint contains two causes of action-one for conversion of the lumber, and the other on a contract of purchase. The facts are, that plaintiff contracted to sell and deliver to defendant, whose place of business was in Charlotte, a car load of lumber, two inches thick. While the lumber was in the car, plaintiff conferred with defendant's agents in Charlotte about it, and this conversation occurred, as detailed by plaintiff: "I said, 'I am sorry there is a misunderstanding about it. You can use every stick of this lumber in your business here, some way. What will you give me for this lumber? He said, 'I can't use a stick under two inches thick.' I said, 'Well, I can't afford to have my lumber tore up for what little is over two inches. You need not take any of it.' He said, 'Well.' I asked him if he had any room of his yard I could stack it until I could dispose of it. He said, 'No; but you can stack it on the right of way of the railroad track.'"

ANDERS v. GARDNER.

Plaintiff then authorized Mr. Ogglesby to sell the lumber for him, and went home. Some days thereafter, the defendant's agents and employees entered the car and took out and used all the two-inch lumber in it.

The plaintiff cannot recover on the contract-first, because he did not perform it by delivering two-inch lumber; secondly, because, according to his own evidence, the contract was rescinded by mutual agreement and the lumber placed again on sale by plaintiff.

It necessarily follows that if the original contract of purchase was rescinded by agreement of the parties, and the defendant went in the car and took a part of the lumber after that time, that would be a conversion, and the plaintiff could recover only the value at the time of the conversion of the lumber actually taken, together with such damage to the car-load lot as plaintiff sustained by reason of the defendant unlawfully taking a portion of the lumber and leaving the remnant. Even if the contract had not been rescinded by mutual consent, the defendant, by taking the part of the lumber that was two inches thick, was not bound under the contract to receive the remainder, which did not come up to the contract and was less than two inches in thickness. Freeman v. Skinner, 31 N. C., 32.

Affirmed.

A. S. ANDERS et al. v. B. B. GARDNER.

(Filed 8 January, 1910.)

1. Contracts Restraint of Trade, Reasonable Assignment of.

For and in consideration of the purchase of certain certificates of stock at a certain price, the vendor agreed not to enter or become employed in the same town in a certain business in which he was skilled, and which was carried on by the corporation. Held, the agreement is supported by a sufficient consideration, is a reasonable restraint of trade, and valid; and is assignable, especially when the corporation is the assignee, and the contract in restraint was also made for its benefit.

2. Contracts Restraint of Trade, Reasonable - Injunction Damages.

When it appears by affidavits, or otherwise, that one who has entered into a valid contract in restraint of his trade or business is acting in violation of it, upon proper application of the other party in interest, a restraining order should be continued to the hearing, especially when it appears that resulting damages would be difficult to measure.

ANDERS v. GARDNER.

APPEAL by plaintiffs from Webb., J., upon his rendering judgment dissolving plaintiff's restraining order in an action brought in GASTON County. The judgment was rendered at chambers, at Concord, 31 August, 1909.

The facts are stated in the opinion of the Court.

A. G. Mangum, Jones & Timberlake and Burwell & Cansler for plaintiffs.

Tillett & Guthrie and O. F. Mason for defendant.

CLARK, C. J. The defendant owned one-third interest, ten shares (at par value, $1,000), in the Gastonia Livery Company. He sold these for $1,700 to M. G. Anders, one of the plaintiffs, with a contract, in writing, that the defendant would never engage again in the livery business within the corporate limits of the town of Gastonia nor work as an employee in such business therein, unless with the said company. The defendant was specially skilled in said business, and competition was sharp in the livery business. Such contract was deemed valuable by the parties, or it would not have been made. The defendant became an employee of the Gastonia Livery Company, but, that relation being severed, he took service in said town with the opposition livery stables, and the plaintiffs, who are said Mac G. Anders (who now holds only one share of the stock) and the holders of the balance of the stock of the Gastonia Livery Company, seek to restrain him from so doing. The affidavits for plaintiffs are to the effect that said contract against defendant accepting employment in any other livery stable in Gastonia, or engaging in the business, was a valuable consideration; that it was made for the company as well as for the benefit of M. G. Anders, who later assigned it to the Gastonia Livery Company.

The restraining order should have been continued to the hearing, especially as damages would be hard to measure. Jolly v. Brady, 127 N. C., 142. The contract was a reasonable restraint of trade, and valid. This has been so often held by this Court that we need only refer to some of the cases where the matter has been fully discussed. Cowan v. Fairbrother, 118 N. C., 406; Kramer v. Old, 119 N. C., 6; Jolly v. Brady, 127 N. C., 142; King v. Fountain (livery stable), 126 N. C., 197; Hauser v. Harding, ib., 295; Baker v. Cordon, 86 N. C., 116.

Such contracts are assignable. Cowan v. Fairbrother, 118 N. C., 1. Besides, if the jury should find, in accordance with the plaintiffs' affidavits, that the contract was made for the benefit of the Gastonia Livery Company (as well as for the benefit of

WARLICK . REYNOLDS.

M. G. Anders), the other stockholders, as beneficiaries of such contract, could maintain this action without any assignment thereof, even if M. G. Anders were not a plaintiff herein. Haun v. Burrell, 119 N. C., 544, and cases approving that case, cited in the annotated edition. Certainly, if the contract enhanced the value of the ten shares bought by M. G. Anders, it increased the value of all the other shares.

Reversed.

E. S. WARLICK et al. v. H. P. REYNOLDS & CO. and FIRST NATIONAL BANK OF HUNTINGDON, PA., et al.

(Filed 8 January, 1910.)

1. Courts Jurisdiction Special Appearance · Continuance of

Motion-Waiver.

Jurisdiction in case of actions in personam can only be acquired by personal service of process within the territorial jurisdiction of the court, or by acceptance of service, or by general appearance, actual or constructive, this last usually arising by reason of some motion in the cause which can only be made in behalf of one who submits his case generally to the court's jurisdiction. 2. Summons-Acceptance of Service-Attorneys at Law.

An attorney at law, without having special authority, cannot make a valid acceptance of service of original process.

3. Courts Jurisdiction-Attorneys at Law-Special Appearance—

Continuance of Motion-Waiver.

By entering a special appearance, expressly restricted to the special purpose of moving to dismiss for want of jurisdiction, with a request for a temporary continuance of such motion, an attorney does not enter a general appearance, actual or constructive, or waive any rights of his client to dismiss accordingly. 4. Courts

Jurisdiction—Injunction-In Personam.

An injunction can only operate in personam, and unless jurisdiction of the party can be acquired, the attempted procedure is a nullity, and on motion properly made it should be dismissed. 5. Same-Promissory Notes-Non-Residents-Situs-Proceedings Quasi in Rem.

Proceedings to restrain the negotiation of a note in the hands of a holder, a non-resident and beyond the borders of the State, should be dismissed, and not retained by the courts of our State as a proceeding quasi in rem. The situs of the note, in matters of injunction, is governed by the general rule, that it is at the home of the creditor, differing from the exception to this rule made in proceedings in attachment.