Lamson Co. v. . Morehead

ClakksoN, J. The plaintiff in the petition distinctly alleges “that the said Lamson Company has no contractual relation whatsoever with the said Sinkoe Company.” We cannot see how the defendant can have E. I. and R. A. Sinkoe made parties to the action and then plead for plaintiff that the Sinkoes are solely responsible to it when the plaintiff says there is no contractual relation between it and the Sinkoes. Benevolent Assn. v. Heal, 194 N. C., 401. Then again, the court below sustained the demurrer filed by the Sinkoes. The plaintiff appealed. The receiver did not. We find no error in the court below sustaining the demurrer of the Sinkoes. *168 In Sewing Machine Co. v. Burger, 181 N. C., at p. 255, concurring opinion of Clark, G. J., it is said: “In the Superior Court the sum demanded in good faith confers jurisdiction and when this is done the court is not forbidden to give judgment for less than $200.” Duckworth v. Mull, 143 N. C., 461; Houser v. Bonsal, 149 N. C., 51; Wooten v. Drug Co., 169 N. C., 64; Williams v. Williams, 188 N. C., 728; McIntosh, N. C. Prac. and Proc., p. 56, sec. 57. We infer that the demurrer was sustained on behalf of defendant, receiver, on the ground that on the appointment of a receiver, it made plaintiffs’ executory contract impossible of performance by the Rawls-Knight Company, and the plaintiff could recover only the amount due when the receiver was appointed. That the amount was $87.63, and plaintiff was only entitled to a distributive dividend to be paid on that amount and the sum of $12.40 due by the receiver as rental. These amounts were under $200.00, and the Superior Court had no jurisdiction. Constitution of North Carolina, Art. IY, sec. 27. The court below, no doubt, based its opinion on Wade v. Loan Assn., 196 N. C., p. 171. It is there held: Upon the appointment of a receiver by a court of competent jurisdiction for any cause, executory contracts of employment of a corporation are thereby invalidated during the receivership, performance being made impossible by operation of law, and damages may not be recovered for its breach. Lenoir v. Improvement Co., 126 N. C., 922. It may be noted that in plaintiff’s contract it sets forth “if receivers are appointed to take possession of the business of the user ... all unpaid amounts to the end of this agreement ... be at once precipitated and become due and payable.” We do not extend the doctrine in the Wade and Lenoir cases, supra, further than as there laid down applicable where the relationship is that of officers, agents or employees. We' can see no reason why a corporation although placed in the hands of a receiver should not be liable for its executory contracts. Plaintiff’s contract was not recorded whether it should be as against creditors and purchasers for value, we are not called upon now to decide. C. S., 3312. Trust Co. v. Motor Co., 193 N. C., 663; Acceptance Corp. v. Mayberry, 195 N. C., 508. We may say that plaintiff’s contract does not appeal to the conscience of a court of equity. Courts are slow to enforce unconscionable contracts. In Bangert v. Lumber Co., 169 N. C., at p. 630, it is said: “Equity does not favor forfeitures or penalties, and will relieve against them when practicable, in the interest of justice. 2 Story Eq., p. 644; Carpenter v. Wilson, 59 Atl. Rep., 187; Seldon v. Camp, 95 Va., 528.” The sum demanded by plaintiff, and for which the court allowed plaintiff to bring this action, was over $200.00, to wit, $477.97. The *169 sum demanded seems to have been made in good faith.. Tbe rights of tbe parties under tbe contract we do not pass on. Tbe Superior Court bad jurisdiction. For tbe reasons stated, tbe judgment of tbe court below sustaining tbe demurrer of tbe receiver, is Reversed.