Harris v. . Buie

163 S.E. 693, 202 N.C. 634, 1932 N.C. LEXIS 171

• Court: Supreme Court of North Carolina
• Decided: April 20, 1932
• Status: Published

Opinion

ClabKSOn, J.

(First action.) At tbe close of plaintiff’s, J. D. Harris, evidence, and at tbe close of all tbe evidence, defendant made motions for judgment as in case of nonsuit. O. S., 561. Tbe court below overruled these motions, and in tbis we can see no error.

Tbe plaintiff J. D. Harris testified, in part: “Mr. Buie paid me $40.00 per month but that was not tbe contract exactly. That was tbe contract until we reached tbe grade A standard. . . . Tbe trade about my getting half of tbe profits was to start when I got tbe dairy up to A grade standard. I demanded my half of tbe profits tbe first month after it went up to grade A, but be said wait until we got a few more cows.”

We do not think there is such a material variance between tbe allegations and proof that defendant can complain of. Stokes v. Taylor, 104 N. C., 394; Dorsey v. Corbett, 190 N. C., 783; Brown v. Williams, 196 N. C., 247.

When there is an express contract for a stipulated amount and mode of compensation for services, tbe plaintiff cannot abandon tbe contract and resort to an action for a quantum meruit on an implied assumpsit. Dorsey’s case, supra.

(Second action.) The plaintiff, Galen Harris, testified, in part: “On 12 May I began driving Mr. Buie’s milk truck. He fired Ben McBryde and told father and I that be wanted me to drive the truck for bim and that he would pay me $50.00 per month, the same he had been paying McBryde. ... I worked for him six months and he did not pay me anything. I am claiming $50.00 for the six months. Mr. Buie never complained to me about my work. He said I had done all right. I was not of age to work for him and ask for my pay. I left that to my father as he was handling the business transaction.”

J. D. Harris testified, in part: “I have had the court appoint me as next friend of my son to bring this suit. . . . Mr. Buie got dissatisfied with one of his drivers and he asked me if I thought I could finish up and get ready for grade A- and let him put Galen on a truck. I told him I thought I could and so we called Galen over and he asked Galen if he would be willing to drive the truck at $50.00 per month, the same he had been paying McBryde. My son went to work for him the next morning. He worked six months. I never got any money from him for Galen.”

In this action Galen Harris, by his next friend, J. D. Harris, against L. C. Buie, at the close of plaintiff’s evidence the defendant, Buie, did not move for judgment as in case of nonsuit in the court below, nor at the close of all the evidence, as he had a right to do under C. S., 567. By the failure of defendant to follow strictly C. S., 567, supra, the question of the insufficiency of evidence is waived. Nowell v. Basnight, 185 N. C., 142; Penland v. Hospital, 199 N. C., 314; Batson v. Laundry Co., ante, 560. For the reasons given, in the judgment of the court below we find

No error.