Markham v. Johnson

189 S.E.2d 588 (1972)

Isaac B. MARKHAM
v.
Wilbur JOHNSON and wife, Claudine C. Johnson.

No. 7214SC371.

Court of Appeals of North Carolina.

June 28, 1972. Certiorari Denied August 31, 1972.

Bryant, Lipton, Bryant & Battle by Richard M. Drew, Durham, for plaintiff-appellee.

W. G. Pearson, II, Durham, for defendants-appellants.

Certiorari Denied by Supreme Court August 31, 1972.

BROCK, Judge

The defendants first assign as error that the trial judge denied defendants' motion for a directed verdict and for judgment notwithstanding the verdict as to the defendant Claudine C. Johnson. Defendants argue that this motion should have been granted, because the evidence does not disclose that Claudine C. Johnson was a party to the contract with plaintiff and that there was no evidence of ratification by Mrs. Johnson or that Mr. Johnson was acting as an agent for his wife when he alone entered into the said contract with plaintiff. Therefore, Claudine C. Johnson is not liable jointly or severally to the plaintiff in the sum of $1,325.

Although we find this argument of defendants resourceful, it is, nevertheless, without merit. The issue, which defendants are now attempting to raise, that there was a lack of any agency relationship on behalf of Claudine C. Johnson was not raised by the pleadings filed in the case. In fact, by admission contained in the answer which Mrs. Johnson signed and swore to, she and her husband admitted she was a party to the contract with the plaintiff which gave rise to the lawsuit. The defendants' admission went to the material fact that there was a contract between plaintiff and the defendants. "Where a material fact is alleged in the complaint and admitted in the answer, it will, for the purpose of the trial, be taken as true and beyond the range of questioning." Johnson v. Johnson, 7 N.C.App. 310, 172 S.E.2d 264.

The defendants next assign as error the trial judge's denial of defendants' motion to amend paragraph 3 of their answer in order to conform with the evidence as offered during the trial in accordance with G.S. § 1A-1, Rule 15(b). This motion was not made until after defendants' motion for judgment notwithstanding the verdict was denied.

The defendants' motion was addressed to the sound discretion of the trial judge. The trial court has broad discretion in permitting or denying amendments. Helson's Premiums and Gifts, Inc. v. Duncan, 9 N.C.App. 653, 177 S.E.2d 428. The defendants have not argued or shown any abuse of discretion by the trial court in denying their motion to amend their answer; therefore, this assignment of error is overruled.

The defendants' last assignment of error brought forward on appeal is that the trial court erred in over-emphasizing the plaintiff's contentions and de-emphasizing the contentions of the defendants in its charge to the jury.

The exception referred to in this assignment of error is Exception No. 5. Exception No. 5 was taken to the brief explanation given by the trial judge of the law applicable to the two issues. There was no exception to the statement of contentions. An assignment of error must be supported by an exception previously noted. In any event the statement by the trial judge of the contentions of the parties takes only eighteen lines in the printed record on appeal; twelve of these lines are devoted to stating defendants' contentions. This assignment of error is overruled.

No error.

MORRIS and HEDRICK, JJ., concur.