White v. Disher

59 S.E.2d 798 (1950) 232 N.C. 260

WHITE
v.
DISHER et al.

No. 744.

Supreme Court of North Carolina.

June 9, 1950.

William S. Mitchell, Winston-Salem, for plaintiff appellee.

Eugene H. Phillips, Winston-Salem, for defendant appellant.

WINBORNE, Justice.

Is there error in the ruling of the court in denying the motion of the appealing defendant, Commercial Finance Company, for judgment as of nonsuit at the close of all the evidence? This is the main question presented on the appeal, and the evidence shown in the record, in the light of applicable principles of law, directs a negative answer. The evidence of plaintiff stands unchallenged, save and except by pleading of defendant. And taking the evidence in the light most favorable to plaintiff, as must be done in considering a motion for judgment as of nonsuit, it appears that it is sufficient to take the case to the jury, and to support the verdict rendered by the jury.

In this State it is provided by statute, G. S. § 24-1 that "the legal rate of interest shall be six per cent per annum for such time as interest may accrue, and no more."

And it is further provided in G.S. § 24-2 that "the taking, receiving, reserving or charging a greater rate of interest than six per cent per annum, either before or after the interest may accrue, when knowingly done, shall be a forfeiture of the entire interest which the note or other evidence of debt carries with it, or which has been agreed to be paid thereon. And in case a greater rate of interest has been paid, the person or his legal representatives or corporation by whom it has been paid, may recover back twice the amount of interest paid in an action in the nature of action for debt. * * *"

Applying these statutes to the present case, the evidence of plaintiff is susceptible of a finding by the jury that the transaction, in so far as the Commercial Finance Company is concerned, was a $1,500 loan made by it to plaintiff. The jury has found that it was a loan. And the evidence is sufficient to support a finding by the jury that defendant Commercial Finance Company knowingly took and received from plaintiff on the loan a greater rate of interest than six per cent per annum. And the jury has so found. Moreover, the evidence is sufficient to support the finding by the jury as to the "amount of interest paid by plaintiff on said loan".

It is contended, however, that there is no evidence that B. V. Disher had authority (1) to make loans for the defendant Commercial Finance Company, or (2) to make statements for the company in the scope of his employment.

In this connection, defendant, Commercial Finance Company, admits that it is engaged in the business of lending money and that B. V. Disher is its employee. Taking this in connection with the documentary evidence, the two account books and the receipts for payments made by plaintiff to this defendant, the whole is sufficient to show at least ratification of the acts of B. V. Disher in the transaction here involved. McNeely v. Walters, 211 N.C. 112, 189 S.E. 114; Jones v. Bank of Chapel Hill, 214 N.C. 794, 1 S.E.2d 135.

Furthermore, the fact that the jury, in answering the issue as to what amount, if any, is plaintiff entitled to recover of the defendant, fixed the amount at less than twice the amount of interest found to have been paid by plaintiff on the loan, is not prejudicial to defendant, and in respect to it, defendant has no cause for complaint.

There are other exceptions, to only one of which is it deemed necessary to give express consideration.

It is contended that the court erred in permitting plaintiff to testify that he said that the sum here in controversy "was for the use of their money for 15 months". As to this contention, if it be conceded that evidence of his authority be lacking at the time, it is seen that plaintiff later testified without objection to the same statement of B. V. Disher. Hence the benefit of the prior objection is lost.

"It is thoroughly established in this state that, if incompetent evidence be admitted over objection, but the same evidence has theretofore or thereafter been given in other parts of the examination without objection, the benefit of the exception is ordinarily lost." Brogden, J., in Shelton v. Southern R. Co., 193 N.C. 670, 139 S.E. 232, 235, citing cases. See also more recent cases to same effect: State v. Hudson, 218 N.C. 219, 10 S.E.2d 730; State v. Oxendine, 224 N.C. 825, 32 S.E.2d 648; State v. Godwin, 224 N.C. 846, 32 S.E.2d 609; State v. Anderson, 228 N.C. 720, 47 S.E.2d 1; State v. Strickland, 229 N.C. 201, 49 S.E.2d 469; Fanelty v. Rogers Jewelers, Inc., 230 N.C. 694, 55 S.E.2d 493.

All other assignments of error have been duly considered, and are found to be without merit.

Hence, in the judgment below, we find

No error.