Hoover v. KLEER-PAK OF NORTH CAROLINA, INC.

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236 S.E.2d 386 (1977)

33 N.C. App. 661

Clifton H. HOOVER, Plaintiff, v. KLEER-PAK OF NORTH CAROLINA, INC., a corporation, Defendant, v. Lawrence E. HOWARD, Third-Party Defendant.

No. 7626DC878.

Court of Appeals of North Carolina.

July 20, 1977.

Certiorari Denied September 12, 1977.

*389 Wardlow, Knox & Knox by William G. Robinson and John S. Freeman, Charlotte, for plaintiff-appellee.

Harkey, Faggart, Coira & Fletcher by Philip D. Lambeth, Charlotte, for defendant-appellant.

Certiorari Denied by Supreme Court September 12, 1977.

PARKER, Judge.

Defendant first assigns error to the order allowing plaintiff's motion pursuant to G.S. 1A-1, Rule 59, whereby the judgment of 9 March 1976 was set aside pending the hearing of additional testimony. Defendant asserts that the trial court abused its discretion in reopening the case in that the affidavits supporting the motion were insufficient to establish the grounds enumerated under Rule 59 for granting such a motion. It is well established that a motion for a new trial under G.S. 1A-1, Rule 59, is addressed to the sound discretion of the trial judge, whose ruling is not reviewable on appeal absent an abuse of discretion. Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970). Defendant has failed to show any such abuse of discretion. Plaintiff's affidavits presented sworn facts by Hubert Bertmaring which tended to show that he did in fact place the questioned order with plaintiff as well as to show why he had not testified at the earlier trial. The judge, being of the opinion that this additional testimony could lead to a new and different judgment, ordered the original judgment reopened. Having wide latitude under Rule 59 to grant new trials, the judge did not abuse his discretion in seeking to have all the facts before him before reaching a final decision in this case. See Finance Corp. v. Mitchell, 26 N.C.App. 264, 215 S.E.2d 823 (1975). Defendant's first assignment of error is overruled.

Defendant assigns as error the entry of the 28 July 1976 judgment. Defendant argues that the court's findings of fact and conclusions of law are not supported by the evidence when the testimony "is considered as a whole." There is no merit in defendant's position. In an action tried before the judge without a jury, the court's findings of fact have the force and effect of a jury verdict. Thus, it is the function of the trial judge to pass on the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. Therefore, the findings of the trial court are conclusive on appeal if supported by competent evidence even though the evidence might sustain a finding to the contrary. Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29 (1968). Although the evidence presented by the parties in this case was conflicting, there was competent evidence to support the findings by the trial court. Defendant's assignment of error is overruled.

Defendant finally assigns as error the court's conclusion as a matter of law that defendant terminated plaintiff's contract without just cause and thereby committed a material breach of contract. Defendant argues that the contract was terminable at will because no definite time was set for its duration. We find defendant's position untenable. The purpose of the contractual arrangement between the parties was for plaintiff to use his contacts to develop Brevoni as a customer for defendant in consideration for which plaintiff would receive a 5% commission on all gross sales made by defendant to Brevoni. Both the initial oral agreement and later the written agreement contained terms to the effect that the 5% commission would be paid to plaintiff as long as defendant sold its products to Brevoni. The terms of the contract were definite; therefore, it was not terminable at will. Finding no error in the trial court's conclusions of law, we overruled defendant's final assignment of error.

Affirmed.

BRITT and MARTIN, JJ., concur.