Commercial Banking Corp. v. Linthicum

Supreme Court of North Carolina

Commercial Banking Corp. v. Linthicum

177 S.E. 398, 207 N.C. 455, 1934 N.C. LEXIS 492

DecidedDecember 12, 1934

StatusPublished

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Commercial Banking Corp. v. Linthicum, 177 S.E. 398, 207 N.C. 455, 1934 N.C. LEXIS 492 (N.C. 1934).

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Opinion

BkogdbN, J.

The assignments of error challenge the following rulings of the trial judge, to wit :

(a) Excluding the conversation between defendant and Kines.

(b) Refusal to submit an issue upon the counterclaim.

(c) Refusal to grant a motion of nonsuit.

*457 (d) Refusal to grant a motion for judgment in favor of defendant.

(e) Refusal to give a peremptory instruction to the jury that the defendant was entitled to recover the amount of his loss by fire, less the amount due on the note.

(f) The peremptory instruction to answer the issues in favor of plaintiff.

Kines was not a party to the suit and there was no competent evidence that he was the agent of the plaintiff. Certain letters appear in the record purporting to have been written by the plaintiff. These letters, however, were not identified as required by law. Bank v. Brickhouse, 193 N. C., 231, 136 S. E., 636; Chair Co. v. Crawford, 193 N. C., 531, 137 S. E., 577.

The contract and note introduced in evidence, without objection, contain a stipulation to the effect that there was no contemporaneous oral agreement between the parties. The written contract contained no reference to insurance, and in the absence of evidence tending to show that Kines was the agent of plaintiff, or that the plaintiff was not the purchaser of the note for value, the trial judge ruled correctly. Undoubtedly a trial judge cannot direct a verdict in favor of the party bearing the burden of proof unless the facts are admitted or established, and only one inference can be drawn therefrom. In such event, the trial judge can draw the inference and so direct the jury. See Bank v. McCullers, 200 N. C., 591, 157 S. E., 869; Reinhardt v. Ins. Co., 201 N. C., 785; Somersette v. Stanaland, 202 N. C., 685, 163 S. E., 804.

The burden of showing error is upon the appellant. An examination of the record discloses no reversible error, and hence the judgment is

Affirmed.

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BkogdbN, J.

The assignments of error challenge the following rulings of the trial judge, to wit :

(a) Excluding the conversation between defendant and Kines.

(b) Refusal to submit an issue upon the counterclaim.

(c) Refusal to grant a motion of nonsuit.

*457 (d) Refusal to grant a motion for judgment in favor of defendant.

(e) Refusal to give a peremptory instruction to the jury that the defendant was entitled to recover the amount of his loss by fire, less the amount due on the note.

(f) The peremptory instruction to answer the issues in favor of plaintiff.

Kines was not a party to the suit and there was no competent evidence that he was the agent of the plaintiff. Certain letters appear in the record purporting to have been written by the plaintiff. These letters, however, were not identified as required by law. Bank v. Brickhouse, 193 N. C., 231, 136 S. E., 636; Chair Co. v. Crawford, 193 N. C., 531, 137 S. E., 577.

The contract and note introduced in evidence, without objection, contain a stipulation to the effect that there was no contemporaneous oral agreement between the parties. The written contract contained no reference to insurance, and in the absence of evidence tending to show that Kines was the agent of plaintiff, or that the plaintiff was not the purchaser of the note for value, the trial judge ruled correctly. Undoubtedly a trial judge cannot direct a verdict in favor of the party bearing the burden of proof unless the facts are admitted or established, and only one inference can be drawn therefrom. In such event, the trial judge can draw the inference and so direct the jury. See Bank v. McCullers, 200 N. C., 591, 157 S. E., 869; Reinhardt v. Ins. Co., 201 N. C., 785; Somersette v. Stanaland, 202 N. C., 685, 163 S. E., 804.

The burden of showing error is upon the appellant. An examination of the record discloses no reversible error, and hence the judgment is

Affirmed.

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177 S.E. 398, 207 N.C. 455, 1934 N.C. LEXIS 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-banking-corp-v-linthicum-nc-1934.

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