9 S.E.2d 489 | N.C. | 1940
The questions involved on this appeal, as stated by appellant, relate to rulings of the court below in these respects: (1) In *40 refusing to grant its motion for judgment as in case of nonsuit; (2) in overruling objections to the testimony of the witness Beiner; (3) in refusing to submit issues tendered by it; (4) in submitting the third and fourth issues; and (5) in instructing the jury peremptorily. After a full and careful consideration we find no error in any of these rulings.
(
At the outset it is noted that in section one of the act it is declared that unless the context or subject matter otherwise requires (a) the word "fiduciary" includes, among others named, "officer of a corporation, public or private," (b) the word "person" includes "a corporation," and others named; and (c) the word "principal" includes any person to whom a fiduciary as such owes an obligation.
Plaintiff invokes the provisions of section five of the act, particularly the latter part thereof. For practical application to the case in hand that portion of the act, paraphrased, provides: That if a check is drawn in the name of his principal by a fiduciary, the creditor or other payee is liable to the principal (1) if such check is payable to a personal creditor of the fiduciary and delivered to the creditor in payment of a personal debt of the fiduciary to the actual knowledge of the creditor, or (2) is drawn and delivered in any transaction known by the payee to be for the personal benefit of the beneficiary, (3) if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the check.
Applying this portion of the act to the factual situation in hand, defendant admits that it entered into contracts for the sale of certain lands to John Overton Paine, and that in payment of the amounts payable on execution of the contracts, John Overton Paine delivered to defendant and it accepted two checks drawn in the name of Paine Statistical Corporation, by John Overton Paine, President, and payable to defendant. This admission brings defendant within the purview of the first and second paragraphs of section five as above paraphrased. Furthermore, in the further defense defendant avers that it, in good faith, sold the lands to John Overton Paine, that he went into possession and collected rents and that it stands ready to carry out the transactions with him. Is there, then, any evidence that the "fiduciary" John Overton Paine in fact committed a breach of his obligation as fiduciary, that is, as an officer of Paine Statistical Corporation, in so drawing or delivering the two checks to defendant? The testimony of the certified public *41 accountant, Beiner, is such evidence. It tends to show that the books and records do not reflect the purchase by the corporation of any land in North Carolina, nor do they contain any statement or indication of any authority to John Overton Paine to purchase any such land for the corporation, or otherwise, or that the corporation was indebted to him in any amount, or that it loaned any moneys or authorized the loan of any corporate funds to him; and that the checks were actually drawn on bank accounts of the corporation in which it had deposited cash received from customers and funds derived from sale of customers' securities.
The evidence further tends to show that the nature and course of the business of Paine Statistical Corporation was such as not to indicate a relationship from which implied authority in John Overton Paine to draw the checks for his personal use may be inferred. But, defendant contends that the testimony of the witness Beiner is incompetent.
In this connection it is noted that the court below, without objection, finds and holds the witness to be an expert accountant. The competency of a witness to testify as an expert is a question primarily addressed to the sound discretion of the court, and his discretion is ordinarily conclusive.S. v. Wilcox,
The witness being an expert accountant, his testimony, based upon personal examination of the books and records of the corporation, is clearly competent. S. v. Hightower,
Having held that the testimony of the witness Beiner is competent and admissible, it is deemed unnecessary to consider the contention of plaintiff that the exceptions relating thereto are not timely entered in accordance with the provisions of C. S., 590. Yet, let it not be understood that the exceptions are timely entered.
(3-4) The issues submitted are sufficient to present to the jury proper inquiries as to all determinative facts in dispute, as well as to afford the parties opportunity to introduce all pertinent evidence and to apply it fairly. Hence, there is no error in refusing to submit the issues tendered by defendant. Saieed v. Abeyounis,
5. While it is true as a general principle of law that the trial judge cannot direct a verdict in favor of the party upon whom rests the burden of proof, but "if the facts are admitted or established, and only one *42 inference can be drawn from them, the judge may draw the inference and so direct the jury." McIntosh, North Carolina P. P., 632. In the present case the admissions of defendant virtually cover the facts sought to be elicited by the first, second and third issues. As to the fourth issue, the evidence is all one way, and is susceptible of only one inference.
In the judgment below we find
No error.
