{
  "id": 8547291,
  "name": "WALLACE MEN'S WEAR, INC. (formerly known as COFFMAN-WALLACE, INC.) v. REID V. HARRIS and MARY A. HARRIS",
  "name_abbreviation": "Wallace Men's Wear, Inc. v. Harris",
  "decision_date": "1975-12-17",
  "docket_number": "No. 757DC625",
  "first_page": "153",
  "last_page": "156",
  "citations": [
    {
      "type": "official",
      "cite": "28 N.C. App. 153"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "179 S.E. 2d 867",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "10 N.C. App. 685",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8555379
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/10/0685-01"
      ]
    },
    {
      "cite": "171 S.E. 2d 810",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "opinion_index": 0
    },
    {
      "cite": "7 N.C. App. 171",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8548726
      ],
      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/7/0171-01"
      ]
    },
    {
      "cite": "112 S.E. 2d 128",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1960,
      "opinion_index": 0
    },
    {
      "cite": "251 N.C. 485",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8626310
      ],
      "year": 1960,
      "opinion_index": 0,
      "case_paths": [
        "/nc/251/0485-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 413,
    "char_count": 7737,
    "ocr_confidence": 0.546,
    "pagerank": {
      "raw": 4.095881014791859e-07,
      "percentile": 0.9094974262978266
    },
    "sha256": "b618a47e9afb9b235c00a6abd2acab5357ae42cce51cccbd79aa635098ed04d7",
    "simhash": "1:31c288bd8e94926a",
    "word_count": 1257
  },
  "last_updated": "2023-07-14T22:58:46.500479+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Britt and Vaughn concur."
    ],
    "parties": [
      "WALLACE MEN\u2019S WEAR, INC. (formerly known as COFFMAN-WALLACE, INC.) v. REID V. HARRIS and MARY A. HARRIS"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nIn his first assignment of error defendant contends that it was error to admit into evidence the plaintiff\u2019s itemized statement of account. He argues that the evidence is hearsay, and that the statement was not prepared contemporaneously with the purchase of the clothes and therefore does not come within the hearsay exception for business records. Plaintiff argues that the statement was timely prep\u00e1red and therefore admissible.\nWe need not rule on whether the itemized statement was timely prepared in this case because the defendant stipulated in the \u201cOrder on Pretrial Conference\u201d that it could be received into evidence if relevant and material. Stipulations duly entered during the course of a trial are binding judicial admissions which are binding on the parties. 7 N. C. Index, \u201cTrial\u201d \u00a7 6, p. 262; see Hayes v. Richard, 251 N.C. 485, 112 S.E. 2d 128 (1960). Clearly, the statement was relevant and material.\nDefendant next assigns error to the court\u2019s failing to grant his motion for directed verdict. He argues that there was no evidence that he contracted with plaintiff to create an agency relationship whereby the wife was authorized to charge clothing to the husband\u2019s account.\nIn passing upon a motion for directed verdict all the evidence tending to support plaintiff\u2019s claim has to be taken as true and considered in the most favorable light to plaintiff, giving plaintiff the benefit of every reasonable inference which legitimately may be drawn therefrom, and resolving all contradictions, conflicts and inconsistencies therein in plaintiff\u2019s favor. Defendant\u2019s evidence which contradicts or tends to show a different state of facts is disregarded, and only that which is favorable to plaintiff can be considered. Carter v. Murray, 7 N.C. App. 171, 171 S.E. 2d 810 (1970).\nThe plaintiff\u2019s evidence is sufficient to overcome a motion for directed verdict. Viewed in the light most favorable to plaintiff the evidence tends to show that defendant and his wife agreed to accept plaintiff\u2019s offer of a charge account; that purchases were made by the wife; and that payment was due. Further evidence tended to show that it was the defendant (husband) who stated to plaintiff that he and his wife would like to use the charge account, thus establishing the inference that defendant made his wife his agent to purchase clothes.\nIn defendant\u2019s final assignment of error he contends that plaintiff was allowed to collect interest on the account at a usurious rate. Plaintiff correctly argues that usury is an affirmative defense and must be pleaded. G.S. 1A-1, Rule 8(c). When not raised by the pleading the issue may still be tried if raised by the express or implied consent of the parties at trial. G.S. 1A-1, Rule 15(b). However, defendant not only failed to raise the issue of usury in his pleadings but the record reveals no showing that the issue was raised at the trial. Not having raised the issue in his pleadings or at trial defendant cannot now present this defense before this Court. Grissett v. Ward, 10 N.C. App. 685, 179 S.E. 2d 867 (1971).\nThe judgment is\nAffirmed.\nJudges Britt and Vaughn concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Battle, Winslow, Seott and Wiley, P.A., by Jasper L. Cummings, Jr., for plaintiff appellee.",
      "Allsbrook, Benton, Knott, Allsbrook, and Crawford, by J. E. Knott, Jr., for defendomt appellant."
    ],
    "corrections": "",
    "head_matter": "WALLACE MEN\u2019S WEAR, INC. (formerly known as COFFMAN-WALLACE, INC.) v. REID V. HARRIS and MARY A. HARRIS\nNo. 757DC625\n(Filed 17 December 1975)\n1. Accounts \u00a7 1\u2014 charge account \u2014 itemized statement \u2014 admissibility at trial\nIn an action to recover for credit purchases made from plaintiff\u2019s clothing store, an itemized statement of account was properly admitted into evidence, without regard to whether the statement was prepared contemporaneously with the purchase of the clothing, since defendant stipulated in the \u201corder on Pretrial Conference\u201d that the statement could be received into evidence if relevant and material.\n2. Accounts \u00a7 1; Husband and Wife \u00a7 3\u2014 charge account \u2014 wife as agent of husband in purchasing \u2014 sufficiency of evidence\nIn an action to recover for credit purchases made from plaintiff\u2019s clothing store, evidence was sufficient to withstand a motion for directed verdict where it tended to show that defendant and his wife agreed to accept plaintiff\u2019s offer of a charge account, it was defendant husband who stated to plaintiff that he and his wife would like to use the charge account, thus establishing the inference that defendant made his wife his agent to purchase clothes, purchases were made by the wife, and payment was due.\n3. Rules of Civil Procedure \u00a7\u00a7 8, 15; Usury \u00a7 2\u2014 usury \u2014 failure to plead or raise in trial court \u2014 no consideration on appeal\nDefendant may not contend on appeal that plaintiff was allowed to collect interest on his charge account at a usurious rate, since defendant did not raise the issue of usury in his pleadings or at trial.\nAppeal by defendant from Harrell, Judge. Judgment entered 2 April 1975 in District Court, Nash County. Heard in the Court of Appeals 12 November 1975.\nPlaintiff instituted this action against defendants, Reid V. and Mary A. Harris, for credit purchases made from plaintiff\u2019s clothing store. Plaintiff alleged that various items of clothing had been sold pursuant to a contract with one or both defendants and that the defendants owe the plaintiff the price of the clothing plus interest.\nDefendant Reid Harris answered and denied liability alleging that he had not purchased any of the clothing. Defendant alleged that if his wife had in fact made the purchases, she made them without his knowledge, consent, permission, approval, or authority. Defendant further alleged that the items purchased were luxury items and not necessities. Defendant Mary Harris did not file an answer and a judgment was entered against her by default.\nThe case of plaintiff against Reid Harris was tried in District Court before Harrell, Judge, sitting without a jury. Plaintiff\u2019s evidence tended to establish that the defendant and Mrs. Harris visited plaintiff\u2019s store in October 1971. Plaintiff\u2019s president, William H. Wallace, informed defendant and Mrs. Harris that the store had charge account services that he would make available to them. None of the regular credit checks were made because plaintiff\u2019s president knew the defendant during their college days some ten years prior to the charges constituting the account sued on. Plaintiff\u2019s evidence further established that defendant\u2019s wife charged various items of clothing purchased at plaintiff\u2019s store pursuant to the charge plan. Plaintiff offered into evidence an \u201cItemized Statement of Account\u201d which placed the value of the articles of clothing charged, in addition to interest, at $4,035.87.\nDefendant testified that he and his wife became separated before October 28, 1971, the date of his wife\u2019s first credit purchase from plaintiff. Defendant further testified that his wife had ample clothing of good quality and that the purchases charged at plaintiff\u2019s store were made without his authorization or consent. Mr. Harris stated that he did not know that merchandise was charged to him by his wife until he received a statement of account following the institution of this action, and therefore he could not take any action to discourage the sale of the merchandise to his wife.\nThe trial court found that defendant Reid Y. Harris agreed with plaintiff to pay for goods sold and delivered to Mary A. Harris. The court further found that the defendant had abandoned Mary Harris and that all goods sold to Mrs. Harris were necessities that she purchased as an \u201cagent of necessity\u201d of her husband. Judgment was entered for the plaintiff and defendant appealed to this Court.\nBattle, Winslow, Seott and Wiley, P.A., by Jasper L. Cummings, Jr., for plaintiff appellee.\nAllsbrook, Benton, Knott, Allsbrook, and Crawford, by J. E. Knott, Jr., for defendomt appellant."
  },
  "file_name": "0153-01",
  "first_page_order": 181,
  "last_page_order": 184
}