Perfecting Serv. Co. v. PRODUCT DEVELOPMENT & S. CO.

140 S.E.2d 763 (1965)

264 N.C. 79

PERFECTING SERVICE COMPANY, a corporation, v. PRODUCT DEVELOPMENT AND SALES COMPANY, a corporation, and Radiator Specialty Company, a corporation.

No. 275.

Supreme Court of North Carolina.

March 17, 1965.

*764 Wardlow, Knox, Caudle & Wade, Charlotte, for plaintiff, appellee.

Weinstein, Waggoner & Sturges, Charlotte, for defendant appellant.

PER CURIAM.

This 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. Perfecting Service Co. v. Product Development and Sales Co., 259 N.C. 400, 131 S.E.2d 9. In January 1964 the superior court sustained plaintiff's 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. Perfecting Service Co. v. Product Development and 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.

The 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." 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.

The 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 "in its discretion" 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 motion to strike.

The motion of Radiator to amend was addressed to the discretion of the court and the court's decision thereon is not subject to reviewthere 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, ss. 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.

Affirmed.