## Facts

- Rose owned a stone quarry and leased it for ten years to J. E. Dooley and Son, Inc.
- At the same time, Rose and Dooley executed a separate sealed stone-pricing agreement requiring Dooley to sell crushed stone to Rose at stated prices for the lease term.
- The agreement also required Dooley not to sell stone from the quarry to others (except the State Highway Commission) below specified minimum prices, creating a pricing preference for Rose.
- Dooley sought to sell its quarry business to Vulcan; Rose agreed to release Dooley only if Vulcan expressly assumed the lease and the pricing agreement.
- Vulcan sent Rose a letter stating it assumed both contracts and sold stone to Rose at the contract price for about one year.
- Vulcan then increased prices above the contract rate; Rose continued buying stone under protest for several years due to lack of a practical alternative source.
- Rose sued to recover the difference between the contract prices and the higher prices he paid.

## Issues

1. Whether the stone-pricing agreement was illegal and unenforceable under the Robinson–Patman Act or North Carolina antitrust law.
2. Whether Vulcan, as purchaser of Dooley’s business and alleged assignee, became bound to perform Dooley’s executory obligations under the pricing agreement.
3. Whether the action was governed by the limitations period for sealed instruments or the shorter period applicable to unsealed contracts based on Vulcan’s assumption letter.
4. Whether Vulcan’s overcharges constituted one breach accruing at the first price increase or separate breaches accruing with each sale, and how damages should be measured.

## Decision

- The court rejected Vulcan’s illegality defenses, holding Vulcan did not prove the contract violated federal or state antitrust law.
- The court held Vulcan became bound by the pricing agreement by expressly assuming it and accepting performance under it.
- The court applied the ten-year statute of limitations applicable to sealed instruments because the obligations enforced arose from the sealed pricing agreement.
- The court treated each overcharge as a separate breach, allowing recovery measured by the difference between contract prices and amounts paid, with interest.
- The judgment for Rose was largely affirmed, with limited refinement of accrual and damages treatment consistent with the separate-breach analysis.

## Legal Principles

- Illegality is an affirmative defense; the party asserting it bears the burden of proof.
- Robinson–Patman Act liability requires proof that the discriminatory sale occurred in interstate commerce; proof that a seller generally engages in interstate commerce is insufficient.
- Differential pricing is not void under state antitrust law absent proof of prohibited restraint, monopoly, or competitive injury.
- When a purchaser-assignee expressly assumes an executory bilateral contract and accepts its benefits, the assignee is bound to perform the assignor’s remaining obligations and may be sued directly by the original promisee.
- Where the underlying obligation is a sealed instrument, an assignee who assumes that obligation is subject to the limitations period governing sealed instruments, even if the assumption is evidenced by an unsealed writing.
- For long-term supply arrangements with repeated transactions, each overcharge can constitute a separate breach with its own accrual, and damages are the overcharge amount plus interest.

## Conclusion

The court enforced the sealed stone-pricing agreement against Vulcan as an assignee that expressly assumed the contract, rejected antitrust-based illegality for lack of required proof, applied the ten-year limitations period for sealed instruments, and allowed recovery for each overcharge as a separate breach measured by the contract-price differential plus interest.


Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (N.C. 1973)