Wilkins v. Commercial Finance Co., 739
| Decision Date | 12 June 1953 |
| Docket Number | No. 739,739 |
| Citation | 76 S.E.2d 164,238 N.C. 745 |
| Court | North Carolina Supreme Court |
| Parties | WILKINS, v. COMMERCIAL FINANCE CO., Inc. |
Eugene H. Phillips, Winston-Salem, for petitioners.
DEVIN, C. J., and BARNHILL, J., considering the petition to rehear.
In the opinion of the Court in this case reported in 237 N.C. 396, 75 S.E.2d 118, it was held that the evidence was insufficient to support the cause of action then pleaded; and that certain written instruments, admitted to have been signed by plaintiffs and set up by defendants to defeat plaintiffs' claims, were not attacked for fraud or other invalidating cause. The judgment of nonsuit below was affirmed.
However, it was also stated that the evidence tended to show a meritorious cause of action against the defendant, if sufficiently pleaded; and it was suggested that plaintiffs, if so advised, might bring a new action upon pleadings conforming to the evidence.
As the way is still open to the plaintiffs to institute another action to remedy and redress any wrongs they may have suffered at the hands of the defendant, the petition to rehear is denied.
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Consolidated Vending Co. v. Turner, 276
...of Wadesboro v. Caudle, 239 N.C. 270, 79 S.E.2d 723; Wilkins v. Commercial Finance Co., 237 N.C. 396, 75 S.E.2d 118, rehear. den., 238 N.C. 745, 76 S.E.2d 164; McIntosh, North Carolina Practice and Procedure, 2d ed., § 981. This principle applies to evidence offered to establish an affirmat......