73 N.C. App. 627 | N.C. Ct. App. | 1985
Lead Opinion
For us to uphold the verdict directed against defendant we would have to determine that the foregoing evidence can lead only to the conclusion that defendant is indebted to plaintiff on an account stated in the amount of $11,891.35. Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971). That we cannot do, because other reasonable conclusions are possible, and a new trial is ordered. For that matter, the evidence presented does not even support the claim of account stated, though it does tend to support a claim for work done and materials furnished. This is because an account can only become an account stated by the party charged agreeing, either expressly or impliedly, to its correctness. Mahaffey v. Sodero, 38 N.C. App. 349, 247 S.E. 2d 772 (1978). An account stated involves the striking of a balance between the parties, either expressly or by implication. Little v. Shores, 220 N.C. 429, 17 S.E. 2d 503 (1941). All that the evidence in this case shows is that plaintiff had an account or bill in the amount of $11,891.35. It does not show that defendant agreed to it; on the contrary it shows that he disputed it. Thus what defendant owes plaintiff, if anything, was a question of fact for the jury, rather than one of law for the court.
The course that this case has followed so far and has yet to follow, more than a year after a jury had heard the evidence and was ready to assess it, demonstrates still again both the expediency and wisdom of permitting juries to arrive at a verdict when the evidence has been completed. Following this wise and expeditious course cannot possibly do any harm, since any verdict rendered can still be set aside when the evidence is deemed insufficient; whereas, failing to follow it, as our reports show, often
New trial.
Concurrence Opinion
concurring.
I agree that a verdict was improvidently directed in favor of the plaintiff in this case for the reasons stated by the majority. The final paragraph of the majority opinion, however, is unnecessary to a decision in this case and, to the extent that it may intimate that the granting of a motion for directed verdict pursuant to G.S. 1A-1, Rule 50(a) is never appropriate, is potentially misleading to the trial bench and bar. In ruling upon a motion for directed verdict, the judge should be guided, instead, by the following principle set forth in Manganello v. Permastone, Inc., 291 N.C. 666, 669-70, 231 S.E. 2d 678, 680 (1977):
Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision in the motion and allow the case to be submitted to the jury. If the jury returns a verdict in favor of the moving party, no decision on the motion is necessary and an appeal may be avoided. If the jury finds for the nonmoving party, the judge may reconsider the motion and enter a judgment notwithstanding the verdict under G.S. 1A-1, Rule 50(b), provided he is convinced the evidence was insufficient. On appeal, if the motion proves to have been improperly granted, the appellate court then has the option of ordering entry of the judgment on the verdict, thereby eliminating the expense and delay involved in a retrial, [emphasis added.]
