15 N.C. App. 709 | N.C. Ct. App. | 1972
In its brief defendant asserts:
“The prior decisions of the Court of Appeals having been interlocutory and the defendant having preserved its position by petitioning for Writ of Certiorari, all issues in the cause are before the Court on appeal from a final judgment.”
We do not agree. The decision on a former appeal is the law of the case upon the facts then presented both upon the subsequent hearing and upon subsequent appeal. 1 Strong, N. C. Index 2d, Appeal and Error, § 68, pp. 244-5. On the second appeal, this Court affirmed the “summary judgment entered for plaintiff on the question of defendant’s liability for sales commissions on coal sold under a contract negotiated by defendant’s sales agent, Robert H. Peaseley . . . before his death but delivered after his death.” Peaseley v. Coke Co., 12 N.C. App. 226, 182 S.E. 2d 810 (1971); cert. denied, 279 N.C. 512. The decision of this Court is the law of this case as to the question of defendant’s liability to the plaintiff.
We are advertent to defendant’s contention that because Peaseley had not purchased the “coal and coke dealer” license required by section 105-44 of the North Carolina General Statutes, the contract sued on was “therefore, illegal and unenforceable and the plaintiff is not, therefore, entitled to recover compensation for any services performed pursuant to any such contract.”
“On December 17, 1971 . . . the Court held a hearing upon the plaintiff’s motion and the defendant’s cross motion.
On January 13, 1972, the Court held a supplementary hearing in chambers upon the said motions.
Further hearing was held on January 20, 1972. The Court informed the parties that having considered the pleadings, depositions, affidavits, stipulations, and all other matters of record herein, and the arguments and authorities presented by the parties, it found and concluded that there was no genuine issue as to any material fact in this case, or as to any fact essential to the rendering of a final monetary judgment in this case.
Thereafter, before a judgment was actually signed, the defendant, on January 26, 1972, filed a ‘Motion To Amend’ its ‘Answer’ in the case. The defendant, without leave of Court, also filed, on the same date, an ‘Amendment to Defendant’s Cross Motion For Summary Judgment’ and an ‘Amendment To Defendant’s Opposition To Plaintiff’s Motion For Summary Judgment.’ As to the subject matter of such motion and amendments — namely, the payment of certain ‘license’ taxes by the plaintiff’s testator and his non-payment of certain other ‘license’ taxes — the parties, on January 31, 1972, filed a stipulation with the Court. Subsequently, on February 4, 1972, the defendant filed a ‘Motion For A New Trial And Alternative Motion For Relief From Judgment’ and an ‘Affidavit In Support Of Motion For New Trial And Alternative Motion for Relief From Judgment.’
Notwithstanding that it was determined by judgment entered almost a year ago that the plaintiff is entitled to recover of the defendant in this case, which judgment was affirmed on appeal, and notwithstanding that the motions, amendments and affidavit filed by the defendant since January 20, 1972, are addressed to that previously adjudicated issue, and although the Court therefore deems these filings to be now untimely, the Court has neverthe*713 less this day conducted a full hearing upon the matter raised in such motions, amendments and affidavit, filed by the defendant since January 20,1972, and has considered the facts set forth in the stipulation of the parties relative to such matter, and the arguments and authorities presented by both parties with respect thereto.
The Court again finds and concludes: — That there is no genuine issue as to any material fact in this case, or as to any fact essential to the rendering of a final monetary judgment in this case; that, specifically, the matter dealt with in the motions, amendments and affidavit filed by the defendant since January 20, 1972, raises no genuine issue as to any material fact in this case or as to any fact essential to the rendering of a final monetary judgment in this case, and presents nothing which alters the finding and conclusion that the plaintiff is entitled to recover of the defendant as hereinafter set forth.”
We agree with the ruling of the trial judge. The only question before Judge Snepp on 18 February 1972 was whether the pleadings, affidavits, exhibits, and stipulations on file showed there was a genuine issue as to any material fact with respect to the amount of defendant’s liability to the plaintiff. The material facts necessary to determine the amount of defendant’s liability to plaintiff were: (1) what was Peaseley’s commission on one net ton of coal shipped and (2) how many tons of coal were actually shipped under the contract negotiated by Peaseley. The letter agreement dated 30 August 1960 clearly provided the defendant would pay Peaseley a commission of ten cents per net ton for coal “actually shipped.” According to the stipulation dated 13 August 1972, defendant actually shipped in accordance with the contract 4,831,800 tons upon which the defendant had paid no commissions. The pleadings and stipulations show clearly there are no genuine issues of material fact, and the amount plaintiff is entitled to recover was a simple matter of calculation. The parties stipulated as to the amount of the interest due on the unpaid commissions to the date of the judgment. The judgment appealed from is
Affirmed.
