351 S.E.2d 831 | N.C. Ct. App. | 1987
Jamie TAYLOR t/a Taylor's Auto Sales
v.
Robert A. JOHNSON t/a B.J.'s Auto Sales and the North River Insurance Company.
Court of Appeals of North Carolina.
*833 James M. Roberts, Greenville, for plaintiff-appellant.
Battle, Winslow, Scott & Wiley, P.A. by Robert L. Spencer, Rocky Mount, for defendant-appellee.
WELLS, Judge.
Plaintiff contends that the trial court erred in directing a verdict against him in his suit to recover on the bond. We disagree.
A directed verdict for the defendant will not be allowed unless "it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts that the evidence reasonably tends to establish." Koonce v. May, 59 N.C.App. 633, 298 S.E.2d 69 (1982). In reaching its decision, the trial court must consider the plaintiff's evidence in the light most favorable to the plaintiff and give the plaintiff the benefit of every reasonable inference to be drawn therefrom. Id.
The threshold issue is whether plaintiff is a member of the class of people whom the bond was designed to protect. The pertinent part of the bond stated that North River Ins. Co., as a surety, is bound
to the people of the State of North Carolina to indemnify any person who may be aggrieved by fraud, fraudulent representation or violation by said Principal, salesmen, or representatives acting for such Principal within the scope of employment of such salesmen or representatives of any of the provisions of Article 12, Chapter 20 of the North Carolina General Statutes in the amount of $15,000 for each supplemental place of business, within this State at which motor vehicles are sold....
This section is almost verbatim the language of a bond construed by this court in Triplett v. James, 45 N.C.App. 96, 262 S.E.2d 374, disc. rev. denied, 300 N.C. 202, 269 S.E.2d 621 (1980). There, as in the case at bar, the bond referred on its face to Article 12, Chapter 20. The Triplett court reasoned that, although the contract purported to indemnify "any person" aggrieved by fraud, the bond was clearly obtained in order to meet the requirements of G.S. 20-288. That statute states in pertinent part:
Any purchaser of a motor vehicle who shall have suffered any loss or damage by any act of a motor vehicle dealer that constitutes a violation of this Article shall have the right to institute an action to recover against ... the surety.
The leading case concerning the definition of "purchaser" as expressed in G.S. § 20-288 is Fink v. Stallings 601 Sales, 64 N.C.App. 604, 307 S.E.2d 829 (1983). In that case, Citicorp, a secured party with an interest in defendant's inventory of motor homes, sought to recover under defendant's surety bond when defendant sold a motor home but did not remit the amount owed to Citicorp. This Court noted that, "where words of a statute have not acquired a technical meaning, they must be construed in accordance with their common and ordinary meaning unless a different meaning is indicated" (Citations omitted):
The common meaning of "purchaser," as defined in Webster's Third New International Dictionary (1968), is "one that acquires property for a consideration (as of money)." Although Citicorp did have an interest in the 1979 motor home, it cannot be said that it acquired the vehicle. Citicorp never took possession of the motor home. It was never issued a certificate of title in its own name. Registration cards and license plates were never issued to Citicorp. All Citicorp had was a security interest. We hold that Citicorp is not a "purchaser" under the common and ordinary meaning of the word, and is, therefore, not entitled to recover under G.S. § 20-288.
Id. Although, in the case at bar, the plaintiff's testimony indicated that he tendered *834 money to Johnson and received the title in return, the relationship of the parties was primarily that of joint venturers rather than seller-purchaser: Taylor and Johnson engaged in a short-term business deal for joint profit, with contributions of effort from each and risks taken by each. See Pike v. Trust Co., 274 N.C. 1, 161 S.E.2d 453 (1968). As a joint venturer, Taylor is not a purchaser "under the ordinary meaning of the word" and therefore cannot recover on the bond secured to comply with G.S. § 20-288. Since our finding on this issue precludes recovery, we need not address plaintiff's other arguments. The order of the trial court is
Affirmed.
BECTON and ORR, JJ., concur.
