Superior Foods, Inc. v. Harris-Teeter Super Markets, Inc. , 24 N.C. App. 447 ( 1975 )

210 S.E.2d 900 (1975) 24 N.C. App. 447

SUPERIOR FOODS, INC.
v.
HARRIS-TEETER SUPER MARKETS, INC., and Mexico, Inc.

No. 7426SC818.

Court of Appeals of North Carolina.

January 15, 1975.

Grier, Parker, Poe, Thompson, Bernstein, Gage, & Preston by Gaston H. Gage, Charlotte, for plaintiff appellant.

Wade & Carmichael by R. C. Carmichael, Jr., Charlotte, for defendant appellee Harris-Teeter Super Markets, Inc.

MARTIN, Judge.

Plaintiff contends the trial court erred in giving certain jury instructions where there was no evidence to support such instructions. It is obvious that the record on appeal does not contain all the evidence presented at trial. "If an exception is based upon the ground that there was no evidence to sustain the instruction, this Court cannot pass upon it, unless all of the evidence is sent up." Atwell v. Shook, 133 N.C. 387, 45 S.E. 777 (1903). At any rate, that evidence which is in the record does not support plaintiff's contention. Plaintiff's assignments of error in this regard are overruled.

Next, plaintiff argues the trial court erred in its instructions regarding the notice to be given upon termination of a contract with no definite duration. The court's instruction was almost identical to this Court's statement of the law on this subject in Hospital v. Whitley, 18 N.C.App. 595, 197 S.E.2d 631 (1973). This assignment of error is overruled.

Plaintiff also contends it was prejudicial error for the court not to instruct the jury on certain statutory law in the Uniform Commercial Code pertaining to "usage of trade". The evidence of "usage of trade" relevant to the transaction in question concerned the kind of notice customarily given by a retailer before terminating a contract similar to one between plaintiff and Harris-Teeter. In this regard, the trial court instructed the jury that they should consider "the prior dealings between the parties, . . . , the practice in the trade as it relates to these two parties, and all other circumstances which relate to this transaction." The trial court fully charged on contract law, and plaintiff made no request for additional instructions. If plaintiff desired fuller or more specific instructions on this aspect of the case, he should have asked for them, and not waited until the verdict had gone against him. Miller v. Henry, 270 N.C. 97, 153 S.E.2d 798 (1967).

Finally, plaintiff contends the trial court should have instructed the jury on statutory law in the Uniform Commercial Code pertaining to his various remedies or damages available upon breach of contract by Harris-Teeter. If there was error it was not prejudicial because the rights of the parties as to a breach of contract by Harris-Teeter were determined by the jury in favor of Harris-Teeter. The jury found, in effect, that Harris-Teeter had not breached any contractual duty it may have owed plaintiff. Where the rights of the parties are determined by the jury's answer to one of the issues, error relating to another issue cannot be prejudicial. 1 Strong, N.C. Index 2d, Appeal and Error, § 53, p. 211-212.

No error.

MORRIS and ARNOLD, JJ., concur.