Woodruff v. Shuford
Woodruff v. Shuford
Opinion of the Court
Defendant contends the court erred in failing to grant his motion for a directed verdict. We disagree.
[i]n considering any motion for directed verdict [under N.C. Gen. Stat. 1A-1, Rule 50], the trial court must view all the evidence that supports the non-movant’s claim as being true and that evidence must be considered in the light most favorable to the non-movant, giving to the non-movant the benefit of every reasonable inference that may legitimately be drawn from the evidence with contradictions, conflicts, and inconsistencies being resolved in the non-movant’s favor.
Bryant v. Nationwide Mutual Fire Insurance, 313 N.C. 362, 369, 329 S.E. 2d 333, 337-38 (1985). The court may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. Dickinson v. Pake, 284 N.C. 576, 583, 201 S.E. 2d 897, 902 (1974).
To establish an account stated plaintiff was required to show:
(1) a calculation of the balance due; (2) submission of a statement to plaintiff; (3) acknowledgment of the correctness of that statement by plaintiff; and (4) a promise, express or implied, by plaintiff to pay the balance due.
Carroll v. Industries, Inc., 296 N.C. 205, 209, 250 S.E. 2d 60, 62 (1978). Further,
[t]he jury may infer from the retention without objection of an account rendered for a reasonable time by the person receiving a statement of account that the person receiving the statement has agreed that the account is correct. . . . The retention by the defendant of the account did not of itself create a cause of action. It is a jury question as to whether the defendant by the retention of the statement of the account agreed that it was correct and agreed to pay it. In determining whether the defendant’s failure to object to the account was an assent by the defendant to its correctness and an agreement to pay it, the jury may consider several things. Among the things to be considered are the nature of the transaction; the relation of the parties; their distance from each other, and the means of communication between them; their business capacity; their intelligence or want of intelligence; and the usual course of business between them. [Citations omitted.]
Plaintiffs evidence here shows that he submitted a written statement to defendant for materials and labor, together with invoices for the materials, in March 1982. Approximately two weeks later plaintiff spoke with defendant by phone and defendant said that he “would be up here within two weeks and pay the bill.” Defendant did not thereafter pay plaintiff, and, other than his promise to pay within two weeks, defendant never mentioned the bill until plaintiff instituted this action in September 1982.
We hold that the foregoing evidence, when considered in the light most favorable to plaintiff, is not insufficient as a matter of law to justify a verdict for plaintiff. Dickinson, supra, 284 N.C. at 583, 201 S.E. 2d at 902. From plaintiffs preparation of the statement for labor and materials together with invoices, the jury could reasonably infer that there was a calculation of the balance due. Plaintiff submitted the statement to defendant. The jury could reasonably infer an acknowledgment of the correctness of that statement by defendant’s failure to object to the account within a reasonable time. Defendant expressly promised to pay the bill, and the jury could reasonably infer that he was promising to pay the stated balance due. Thus, following Carroll, supra, and Mahaffey, supra, plaintiff has produced sufficient evidence to create a jury question as to whether there was an account stated. Accordingly, the court did not err in denying defendant’s motion for a directed verdict.
Defendant contends the court should have submitted an issue based on the theory of an open account. Assuming, arguendo, that there was sufficient evidence to justify an instruction on an open account, we hold that the failure to give such an instruction was not prejudicial since the evidence supported, and the jury found, an account stated.
In general, a trial court “must submit all issues which are necessary to settle the material controversies arising out of the pleadings.” Winston-Salem Joint Venture v. City of Winston-Salem, 65 N.C. App. 532, 537, 310 S.E. 2d 58, 62 (1983). An open account results where the parties intend that the transactions between them are to be considered as a connected series rather than as independent of each other, a balance is kept by adjust
Defendant contends the court erred by denying his motion for a new trial based upon jury argument by plaintiff’s counsel. We disagree.
Defendant informed the trial court that plaintiff’s counsel had made the following (unrecorded) argument to the jury:
That the plaintiff does not contend that the plaintiff and the defendant did not meet in August of 1982 on the property of [defendant] to discuss objections that [defendant] had to the bill, however, the plaintiff does say that this conversation took place after the lawsuit in this case was filed in July of 1982.
He contended at trial, and contends here, that this argument was not based upon the record. However, he has not shown any
No error.
Reference
- Full Case Name
- HOWARD WOODRUFF v. ROBERT L. SHUFORD, III
- Cited By
- 2 cases
- Status
- Published