McCrillis v. A & W Enterprises, Inc., 701
| Decision Date | 20 June 1967 |
| Docket Number | No. 701,701 |
| Court | North Carolina Supreme Court |
| Parties | Arthur Warren McCRILLIS v. A & W ENTERPRISES, INC., a Corporation, and Root Beer Drive-Ins, Inc., aCorporation. |
Cahoon & Swisher, Greensboro, for plaintiff appellant.
Smith, Moore, Smith, Schell & Hunter, Drawer G. Jefferson, by James G. Exum, Jr., Greensboro, for defendant appellees.
In considering a motion for judgment of nonsuit, we must interpret the evidence in the light most favorable to the plaintiff, resolve contradictions or inconsistencies in his testimony in his favor, give him the benefit of all reasonable inferences therefrom which are favorable to him, and disregard the evidence of the defendant which is contradictory to that offered by the plaintiff or which tends to establish an affirmative defense. Aaser v. City of Charlotte, 265 N.C. 494, 144 S.E.2d 610; Griffin v. Hartford Accident & Indemnity Co., 265 N.C. 443, 144 S.E.2d 201; Moss v. Tate, 264 N.C. 544, 142 S.E.2d 161; Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330. The credibility of the evidence is for the jury.
When so considered, the evidence offered by the plaintiff is sufficient to support, though not to require, a finding that Lord and Chapoton agreed with the plaintiff, on behalf of the two defendants, that if he would work as general manager of the operations of Root Beer Drive-Ins, Inc., after the contemplated acquisition by them of all of its outstanding shares and the contemplated formation of A & W Enterprises, Inc., the two corporate defendants would retain him in such employment for a period of five years at the specified salary, with the specified bonus opportunities and the specified stock option. The evidence is also sufficient to support, though not to require, a finding that after the acquisition of such stock the new Board of Directors of Root Beer Drive-Ins, Inc., with full knowledge of the agreement so negotiated, ratified it, both by the express resolution of the Board and by the acceptance of the plaintiff's services. The evidence is also sufficient to support, but not to require, a finding that the plaintiff performed the services required of him under the contract and was wrongfully discharged to his damage.
We do not deem the variance between the allegation in the complaint that the contract was for a period of six years and the evidence of a contract for employment for five years, later modified by mutual consent so as to begin one year after the new management assumed control, to be a material variance. Where there is a variance between allegation and proof, amounting to the allegation of one cause of action and proof of another, a nonsuit is proper. In such case there has been a failure by the plaintiff to prove the cause of action alleged in his complaint. G.S. § 1--169; Hall v. Poteat, 257 N.C. 458, 125 S.E.2d 924; Talley v. Harriss Granite Quarries Co., 174 N.C. 445, 93 S.E. 995; Wright v. Teutonia Insurance Co., 138 N.C. 488, 51 S.E. 55. However, where the variation between allegation and proof is such that the adverse party could not have been misled thereby to his prejudice, it will not be deemed a material variance. G.S. § 1--168; Dennis v. Albemarle, 242 N.C. 263, 87 S.E.2d 561, rehear. dism., 243 N.C. 221, 90 S.E.2d 532. Whether the variance is material so as to justify nonsuit must be resolved in the light of the facts of each case. Hall v. Poteat, supra.
Obviously, at the time the plaintiff's negotiations with Lord and Chapoton culminated in the contract upon which he sues, neither Lord nor Chapoton was the agent of either of the defendant corporations. A & W Enterprises, Inc., had not been formed and neither of them had then acquired stock in or become an officer of, or otherwise connected with, Root Beer Drive-Ins, Inc. It appears from the plaintiff's evidence that he was then aware of this circumstance. However, the reasonable inference to be drawn from the plaintiff's evidence is that the agreement was for employment of the plaintiff by the two corporations, not by Lord and Chapoton, and...
To continue reading
Request your trial
-
Knutton v. Cofield, 194
...($15.79 188 weeks). This slight variation is not material. McIntosh, N. C. Practice and Procedure § 1288(1); McCrillis v. A & W Enterprises, Inc., 270 N.C. 637, 155 S.E.2d 281; Dennis v. Albemarle, 242 N.C. 263, 87 S.E.2d Courts do not make contracts. As stated by Higgins, J., in Roberson v......
-
State v. Johnson
...draft as her agent. At that point, Ms. McCoy had the right to ratify the act of her agent and accept the draft. McCrillis v. Enterprises, 270 N.C. 637, 155 S.E.2d 281 (1967). The defendant so far had not committed any fraudulent act toward Ms. McCoy. She owned an interest in the draft in th......
-
Hoyle v. City of Charlotte
...of such nature as to require nonsuit. Nothing indicates that defendant was misled or otherwise prejudiced. McCrillis v. A & W Enterprises, Inc., 270 N.C. 637, 643, 155 S.E.2d 281, 285, and cases cited. This view is supported by the fact that defendant, at trial, did not assert material vari......
-
Loy v. Lorm Corp., 801SC771
...provisions; this adoption will bind the corporation to the terms of the preincorporation agreement. McCrillis v. A & W Enterprises, Inc., 270 N.C. 637, 155 S.E.2d 281 (1967); see also Beachboard v. Southern Ry. Co., 16 N.C.App. 671, 193 S.E.2d 577 (1972), cert. denied, 283 N.C. 106, 194 S.E......