Zickgraf Hardwood Co. v. Seay

• Decision Date: 21 December 1982
• Docket Number: No. 8130SC1403,8130SC1403
• Citation: 298 S.E.2d 208,60 N.C.App. 128
• Parties: ZICKGRAF HARDWOOD COMPANY, d/b/a Nantahala Lumber Company v. Ralph SEAY and Wife, Jimmie N. Seay.
• Court: North Carolina Court of Appeals

Page 208

298 S.E.2d 208

60 N.C.App. 128

ZICKGRAF HARDWOOD COMPANY, d/b/a Nantahala Lumber Company v. Ralph SEAY and Wife, Jimmie N. Seay.

No. 8130SC1403.

Court of Appeals of North Carolina.

Dec. 21, 1982.

McKeever, Edwards, Davis & Hays, P.A. by Fred H. Moody, Jr., Bryson, for defendants-appellants.

Jones, Key, Melvin & Patton, P.A. by Russell R. Bowling, Franklin, for plaintiff-appellee.

JOHNSON, Judge.

This is an appeal from a jury verdict for plaintiff on an account stated. The issue on appeal is whether the trial court should have granted the defendant wife's motions for directed verdict because she was not a partner in the business and was not otherwise liable on the account. For the reasons stated below, we conclude that a directed verdict in favor of Jimmie Seay should have been entered and the case against her dismissed.

It is well settled that a motion for directed verdict under Rule 50 of the North Carolina Rules of Civil Procedure may be granted only if the evidence is insufficient, as a matter of law, to support a verdict for the plaintiff. See e.g., Arnold v. Sharpe, 296 N.C. 533, 251 S.E.2d 452 (1979); Trust Co. v. Smith, 44 N.C.App. 685, 262 S.E.2d 646 (1980). In determining motions for directed verdict and for judgment notwithstanding the verdict, the court must consider all relevant evidence admitted at trial in a light most favorable to the plaintiff with contradictions and conflicts resolved in plaintiff's favor. Johnson v. Clay, 38 N.C.App. 542, 248 S.E.2d 382 (1978).

At trial, the plaintiff's evidence disclosed that the plaintiff was a corporation engaged in the business of selling building materials and supplies, and that the defendant Ralph Seay, purchased building materials on credit under an account in the name of "Mr. Ralph Seay, Builder," or "Ralph Seay," from William Roten, plaintiff's credit manager. Purchases were made by way of invoices written by plaintiff's agents. Each invoice was addressed to "Ralph Seay." During this period plaintiff mailed monthly statements of the account, each addressed to Ralph Seay. Roten testified that none of the statements for these accounts had Mrs. Jimmie Seay's name on them.

Plaintiff received several payments on the Ralph Seay account by cashier's checks and by checks drawn on the bank account of Twin Oaks Company. Ralph Seay was the payor on each cashier's check. Ralph Seay signed all but one of the Twin Oaks checks. That one check was signed by Jimmie Seay at her husband's direction. Apparently a difference developed between Mr. Seay and plaintiff as to the balance due on the account. In August, 1978 Mr. Seay instructed Mrs. Seay that the business no longer owed plaintiff money on the account.

Mrs. Seay accompanied her husband to the plaintiff's place of business more than once, picked up the materials he ordered, and signed some of the invoices to evidence receipt of various goods sold.

On several occasions when Mr. Roten talked with Ralph Seay, Jimmie Seay was present. On one occasion when Roten visited a building site he saw the Seays trying to determine a paint color for the kitchen. Jimmie Seay never "sat down with" Roten to calculate materials according to a set of building plans. Roten observed Jimmie in Ralph's office on three occasions; she was answering the phone and had various papers on her desk. On recross-examination Roten testified that he believed that Twin Oaks Company belonged to both Seays.

"I base my belief that it was their company because when a man and his wife own a business, they own a business. I was never told any different and I therefore, believe that Mr. and Mrs. Ralph Seay own Twin Oaks Company. I base my belief on the fact that they were married and that I was never told any different."

After September, 1978 Roten spoke with Mr. Seay about his account twice by telephone. The first time Mrs. Seay answered the phone and Roten believes that before calling Mr. Seay to the phone, she told him that something would be coming in.

Jimmie Seay testified that she worked as a part-time office employee for her husband, keeping the ledgers current, making out the payroll and answering the telephone. Since she knew how much money was in the bank, Mr. Seay would discuss making the payments to plaintiff with her, and Mrs. Seay would then write out a check. Jimmie Seay further testified that she wrote the checks at her husband's direction and never personally discussed Mr. Seay's account with any one from the plaintiff company. She was present when Mr. Seay made arrangements about the accounts but she never requested credit with plaintiff for herself nor signed any credit agreement or other contract concerning credit with plaintiff.

On cross-examination Jimmie Seay stated that she had no other employment. Her husband did not pay her directly for her work in the form of wages, but rather, he "put the food on the table" for her and the children and provided for their general living expenses from the business money. The Twin Oaks Company was a name Mr. Seay chose. Mr. Seay provided the money for that account. Mrs. Seay never wrote a check from the Twin Oaks Company bank account for any of her personal expenses. The Seays also had a personal bank account. Ralph Seay never transferred any funds from the Twin Oaks Account to their personal account, although he did transfer funds from the personal account to the Twin Oaks Company.

Ralph Seay's testimony corroborated the material aspects of Mrs. Seay's testimony.

The evidence presented was insufficient as a matter of law to support a verdict obligating Jimmie Seay, as a principal to pay the account. The plaintiff's theory of the case and the issue eventually submitted to the jury was that the plaintiff's account was an account stated.

" 'An account stated may be defined, broadly, as an agreement between the parties to an account based upon prior transactions between them, with respect to the correctness of the separate items composing the account, and the balance, if any, in favor of the one or the other. The amount or balance so agreed upon constitutes a new and independent cause of action, superseding and merging the...