Piedmont Supply Co. v. Rozzell

70 S.E.2d 677 (1952) 235 N.C. 631

PIEDMONT SUPPLY CO., Inc.
v.
ROZZELL et al.

No. 306.

Supreme Court of North Carolina.

May 21, 1952.

Willis & Geitner, Hickory, for plaintiff appellee.

E. Murray Tate, Jr. and Theodore F. Cummings, Hickory, for defendant appellant.

VALENTINE, Justice.

The appellant assigns as errors, (1) the action of the trial judge in overruling his demurrer and denying his motion for judgment as of nonsuit; and (2) certain portions of the charge on the ground (a) that the trial judge included in his charge statements of fact neither admitted nor shown by the evidence, and (b) that the charge amounted to a peremptory instruction for the plaintiff on the first issue, although the evidence of plaintiff and defendant was in sharp conflict.

Under our decisions, there was sufficient evidence to repel the motion for judgment as in case of nonsuit and to require the submission of the case to the jury upon appropriate issues and a proper charge. Graham v. Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R. 2d 881; Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316; Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664.

There is, however, reversible error in the charge. When his Honor in referring to appellant's testimony stated to the jury, "He says he was a member of the partnership in Newton under the same name, doing business in Newton, and that the same concern was doing business in Hickory," he was in error. Nowhere in the evidence does it appear that the appellant ever admitted that he was a partner in the Catawba Pump Company at Hickory. His evidence all tends to show that the two businesses were separate firms, that he was a partner owning a one-fourth interest in the Catawba Pump Company at Newton, but not a partner in the firm of the same name at Hickory. Indeed, the first item of plaintiff's evidence asserts that there were two partnerships by the same name, one located in Hickory and the other in Newton.

The applicable rule of law is, while an inaccurate statement of facts contained in the evidence should be called to the attention of the court in order that the error might be corrected, a statement of a material fact not shown in the evidence constitutes reversible error. Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; State v. Wyont, 218 N.C. SOS, 11 S.E.2d 473; State v. Love, 187 N.C. 32, 121 S.E. 20; Smith v. Stanfield Hosiery Mills, 212 N.C. 661, 194 S.E. 83; Curlee v. Scales, 223 N.C. 788, 28 S.E.2d 576.

There was some evidence that the appellant was a partner in the Catawba Pump Company and that this firm did business both in Hickory and in Newton, but this was denied by the appellant and upon such conflicting evidence a peremptory instruction in favor of the plaintiff was erroneous. Boutten v. Wellington & P. R. R., 128 N.C. 337, 38 S.E. 920; U. S. R. R. Administration v. Hilton Lumber Co., 185 N.C. 227, 117 S.E. 50; Porter v. Construction Co., 195 N.C. 328, 142 S.E. 27; Kearney v Thomas, 225 N.C. 156, 33 S.E.2d 871; Perry v. Trust Co., 226 N.C. 667, 40 S.E.2d 116; Morris v. Tate, 230 N.C. 29, 51 S.E.2d 892; Stallings v. Insurance Co., 231 N.C. 732, 58 S.E.2d 716.

For the errors pointed out, there must be a new trial, and it is so ordered.

New trial.