Mills v. Koscot Interplanetary Inc.
| Decision Date | 29 March 1972 |
| Docket Number | No. 7222SC9,7222SC9 |
| Citation | 13 N.C.App. 681,187 S.E.2d 372 |
| Court | North Carolina Court of Appeals |
| Parties | Mrs. Peggy MILLS v. KOSCOT INTERPLANETARY INC., a foreign corporation. |
Raymer, Lewis & Eisele by Douglas G. Eisele, Statesville, for plaintiff appellant and appellee.
Broughton, Broughton, McConnell & Boxley by John D. McConnell, Jr., Raleigh, for defendant appellant and appellee.
Defendant asserts that its motion for judgment on the pleadings should have been sustained. We do not agree. This motion was made under Rule 12 of the North Carolina Rules of Civil Procedure, G.S. § 1A--1, Rule 12. The defendant's motion was made prior to the amendment to the complaint. It is to be passed upon, however, in the light of the evidence presented at the trial and the amendment to the complaint which was thereafter allowed by the trial court. 2A Moore's Federal Practice, § 12.15, p. 2349 (2d Ed.1968). When so considered under the new notice theory of pleading, we think the complaint as amended was sufficient. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).
Under the pleadings as amended defendant was put on notice that plaintiff claimed to have entered into a contract with defendant pursuant to which plaintiff had paid the defendant $2500 for the right to sell distributorships; that unbeknownst to the plaintiff, defendant entered into a consent judgment pursuant to which plaintiff was effectively prevented from reaping the rewards to which she was entitled by her contract since she no longer could sell distributorships and that this was the primary inducement for the contract and payment of $2500 to the defendant by the plaintiff.
Defendant next argues that it was error for the trial court to deny its motions for a directed verdict at the close of the plaintiff's evidence and at the close of all the evidence. A motion for a directed verdict is proper only in a jury trial. Where the case is tried without a jury the proper motion is for involuntary dismissal under Rule 41(b). Bryant v. Kelly, 10 N.C.App. 208, 178 S.E.2d 113 (1970), 279 N.C. 123, 181 S.E.2d 438 (1971). We will treat the defendant's motions for a directed verdict as such. The motion made at the close of the plaintiff's evidence will not be considered as the defendant offered evidence and only the motion at the conclusion of all the evidence is therefore presented. Wells v. Sturdivant Life Insurance Co., 10 N.C.App. 584, 179 S.E.2d 806 (1971).
'In ruling on a motion to dismiss under Rule 41(b), applicable only 'in an action tried by the court without a jury,' the court must pass upon whether the evidence is sufficient as a matter of law to permit a recovery; and, if so, must pass upon the weight and credibility of the evidence upon which the plaintiff must rely in order to recover.' Airport Knitting, Inc. v. King Kooton Yarn Co., 11 N.C.App. 162, 180 S.E.2d 611 (1971).
The evidence presented by the plaintiff tended to establish that she paid defendant $2500 to become a director distributor in defendant's organization; that she did so in reliance on defendant's representations that its activities were legal; that defendant had been advised by the Secretary of State that its operations might be illegal; that one of the material benefits of being a director distributor was the privilege of selling distributorships; that defendant entered a consent decree which prevented plaintiff from selling distributorships.
The plaintiff has presented evidence of a contract, a breach by defendant and damages. Where plaintiff's evidence shows a contract and an act by defendant rendering it impossible for plaintiff to perform her part of the agreement, a prima facie case has been made out. Cook v. Lawson, 3 N.C.App. 104, 164 S.E.2d 29 (1968). The question of credibility is one for the trier of the facts. The Judge properly denied the motion to dismiss.
The final assignment of error presented by the defendant is that the trial court committed error in its findings of fact, conclusions of law and judgment. As defendant admits, this is a broadside exception. It merely challenges the sufficiency of the facts found to support the judgment entered. Browning v. Humphrey, 241 N.C. 285, 84 S.E.2d 917 (1954). We have, nevertheless, reviewed the evidence, and we conclude that it supports the findings of fact, and these in turn support the judgment rendered.
Plaintiff asserts that it was error for the trial court to conclude that she was not...
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