Young v. . Lucas , 212 N.C. 194 ( 1937 )

CONNOR, J., concurring.

BARNHILL, J., dissenting.

CLARKSON and DEVIN, JJ., concur in dissenting opinion. This action was instituted in recorder's court of Dunn to recover attorneys' fee for professional services alleged to have been rendered in action in the Federal Court by the Virginia Trust Company against H. W. Lucas. The plaintiffs obtained judgment and the defendants appealed to the Superior Court, where plaintiffs again obtained judgment and the feme defendant, Callie Lucas, appealed to the Supreme Court, assigning as error the court's refusal to allow her motion for judgment as in case of nonsuit made when the plaintiffs had introduce their evidence and rested their case and renewed after all the evidence was in. C. S., 567.

We are of the opinion, and so hold, that the trial judge erred in refusing to allow the appellant's motion. The evidence was to the effect that the action in the Federal Court, wherein the alleged services were rendered, was against the male defendant; that the feme defendant, the appellant, was not a party thereto. The plaintiff E. F. Young testified: "I do not recall that his wife (the appellant) ever went to my office prior to the settlement (of the case in the Federal Court). I never has any conversation or contract with her about it." All that the evidence, taken in the light most favorable to the plaintiffs, tends to prove is that the appellant was the wife of her codefendant, that the land, the foreclosure of a deed of trust on which was the subject of the action in the Federal Court, had, prior to the action of foreclosure, been deeded by her codefendant to her, and that she knew of the action in the Federal Court, and that said action had been advantageously settled by compromise. This was not sufficient to carry the case to the jury upon the theory that thefeme defendant, appellant, authorized the employment for her of the plaintiffs, or that there was an implied contract by her to pay the plaintiffs.

For the error assigned, the judgment against the appellant is

Reversed.