Evans v. Star GMC Sales and Service, Inc.

151 S.E.2d 69 (1966) 268 N.C. 544

Ervin L. EVANS
v.
STAR GMC SALES AND SERVICE, INC., and Yellow Motors Credit Corporation.

No. 535.

Supreme Court of North Carolina.

November 23, 1966.

Davis & Brown, Allen W. Brown, Bailey, Dixon & Wooten, Raleigh, for plaintiff appellant.

Maupin, Taylor & Ellis and Frank W. Bullock, Jr., Raleigh, for defendant appellee, GMC Sales & Service, Inc.

Young, Moore & Henderson, Raleigh, for defendant appellee, Yellow Motors Credit Corp.

PLESS, Justice.

Upon the demurrer of the defendants it is by operation of law admitted that Yellow Motors was the holder in due course of a conditional sales contract from plaintiff to Star, and that the plaintiff was some $1,800 in arrears, having made no monthly payment on the principal for several months. The plaintiff makes no claim that Yellow Motors warranted the truck-tractor and under the provisions of the assigned contract Yellow Motors was authorized to declare the entire balance due upon default in payment by plaintiff. This it did, proceeding with foreclosure which is not attacked for irregularity or failure to comply with the terms of the conditional sales contract. Neither is it claimed that the law of North Carolina pertaining to foreclosure of chattel mortgages was not observed. The consequence is that having done nothing unlawful Yellow Motors could not be liable to the plaintiff. "The exercise of a legal right in a lawful manner cannot support a claim for either punitive or compensatory damages." Rea v. Universal C.I.T. Credit Corp., 257 N.C. 639, 127 S.E.2d 225.

The complaint refers to several alleged extensions of time granted him by Yellow Motors, but for the final extension no period of time is set forth and no consideration for that extension is alleged. The plaintiff's action in voluntarily driving the truck-tractors from Florida to Greenville, N.C., for the purpose of surrendering it to Yellow Motors at the latter point would indicate that he claimed no further rights under the alleged extension.

A conspiracy is an agreement between two or more persons to commit an unlawful act or to do a lawful act in an unlawful manner. Burton v. Dixon, 259 N.C. 473, 131 S.E.2d 27; Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783. An agreement to do a lawful act cannot constitute a conspiracy regardless of the motives of the parties and even if it could be shown that Yellow Motors agreed with Star that it would repossess the truck-tractor and foreclose its lien, this did not constitute an unlawful agreement and, hence, not a conspiracy. The bare allegation of conspiracy is refuted by any reasonable interpretation of the complaint, and the case was properly dismissed as to Yellow Motors.

It follows that the allegation of conspiracy against Star must also fail, since two or more confederates are necessary to constitute a conspiracy and, with Yellow Motors eliminated, Star had no one with whom to conspire.

We are of opinion that for the foregoing reason the action of the Court sustaining the demurrers was proper.

The plaintiff's cause of action is based entirely and exclusively upon an alleged civil conspiracy. We have therefore gone into that claim.

However, this decision is not to be construed as approving the plaintiff's position that had he established a conspiracy it would have given him a cause of action. There is no such thing as a civil action for conspiracy, as is fully stated in the recent case of Shope v. Boyer, 268 N.C. 401, 150 S.E.2d 771. That case cites an excerpt from Reid v. Holden, 242 N.C. 408, 88 S.E.2d 125; "The gist of the civil action for conspiracy is the act or acts committed in pursuance thereof—the damage—not the conspiracy or the combination."

This decision deals only with the matters presented by the pleadings in this cause. It will not preclude the plaintiff from pursuing any other cause of action he may have as to Star.

Affirmed.