Durham Life Broadcasting, Inc. v. International Carpet Outlet, Inc.

306 S.E.2d 459, 63 N.C. App. 787, 1983 N.C. App. LEXIS 3210

• Court: Court of Appeals of North Carolina
• Decided: September 6, 1983
• Docket: No. 8210DC1036
• Status: Published

Opinion

ARNOLD, Judge.

When an action is brought by a plaintiff, it has the burden of proof of establishing a right to recover. It must allege and prove all the essential elements of its cause of action. See Wiles v. Mullinax, 275 N.C. 473, 483, 168 S.E. 2d 366, 373 (1969). In this case, the plaintiff failed to prove the existence of a contract, which was a prerequisite to its right of recovery.

G.S. 8-45 does not establish the existence of a contract as the plaintiff argues. That statute says:

In any actions instituted in any court of this State upon an account for goods sold and delivered, for rents, for services rendered, or labor performed, or upon any oral contract for money loaned, a verified itemized statement of such account shall be received in evidence, and shall be deemed prima facie evidence of its correctness.

This statute is applicable only where there is no dispute about an account. Nall v. Kelly, 169 N.C. 717, 719, 86 S.E. 627, 628 (1915); Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 719, 230 S.E. 2d 576, 577 (1976); 1 Brandis, N.C. Evidence § 157 (2d rev. ed. 1982). There is clearly a dispute in the case sub judice where the defendant denies the existence of a contract.

Because the plaintiff did not show the existence of a contract, judgment was properly entered for the defendant.

Affirmed.

Judges Webb and Braswell concur.