Martin Ex Rel. Martin v. Reidsville Motor Co.

161 S.E. 77 | N.C. | 1931

On 24 October, 1927, Howard Martin purchased an automobile from the Reidsville Motor Company, falsely representing that he was of age. MorrisPlan C. v. Palmer, 185 N.C. 109, 116 S.E. 261; Hight v. Harris,188 N.C. 328, 124 S.E. 623. Later, after the automobile had been stolen or disposed of, he brought an action to rescind the contract and to recover back the purchase money paid. McCormick v. Crotts, 198 N.C. 664,153 S.E. 152; Collins v. Norfleet-Baggs,197 N.C. 659, 150 S.E. 177. Thereafter, the said Howard Martin was indicted and tried on a charge of obtaining said automobile under false pretense. 14 Rawle C. L., 265. The court nonsuited the case on the ground that the defendant was a minor. He was not under sixteen years of age at the time of the purchase of the automobile, so as to come within the Juvenile Court Act, S. v. Burnett, 179 N.C. 735, 102, S.E., 711; S. v. Coble, 181 N.C. 554.107 S.E. 132. "He looked to be 21, if not more. He said he was going on 22."

This action was then instituted for malicious abuse of process, alleged to have arisen out of said criminal prosecution.

From a judgment of nonsuit, the plaintiff appeals. Conceding, without deciding, that the criminal action against the plaintiff was instituted for retaliatory purposes only, nevertheless there is no evidence of any act done therein contrary to the orderly and regular prosecution of the case. Stanford v. Grocery Co., 143 N.C. 419,55 S.E. 815.

The case of Lockhart v. Bear, 117 N.C. 298, 23 S.E. 484, cited and relied upon by the plaintiff, was decided upon a demurrer to the complaint, rather than on a demurrer to the evidence, and is quite different in the facts alleged.

Affirmed.