{ "id": 8572880, "name": "DEALERS SPECIALTIES, INC., Plaintiff v. NEIGHBORHOOD HOUSING SERVICES, INC., Defendant and Third Party Plaintiff v. LONNIE AUTRY, Third Party Defendant", "name_abbreviation": "Dealers Specialties, Inc. v. Neighborhood Housing Services, Inc.", "decision_date": "1982-05-04", "docket_number": "No. 143A81", "first_page": "633", "last_page": "640", "citations": [ { "type": "official", "cite": "305 N.C. 633" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "283 S.E. 2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "opinion by Arnold, J., with Vaughn, J., concurring and Becton, J., dissenting" } ], "opinion_index": -1 }, { "cite": "54 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520163 ], "year": 1981, "pin_cites": [ { "parenthetical": "opinion by Arnold, J., with Vaughn, J., concurring and Becton, J., dissenting" } ], "opinion_index": -1, "case_paths": [ "/nc-app/54/0046-01" ] }, { "cite": "194 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568004 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0610-01" ] }, { "cite": "127 S.E. 2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 774", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571399 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0774-01" ] }, { "cite": "160 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575337 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0355-01" ] }, { "cite": "5 Wake Forest L. Rev. 1", "category": "journals:journal", "reporter": "Wake Forest L. Rev.", "year": 1969, "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "170 F. 2d 233", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1188409 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/f2d/170/0233-01" ] }, { "cite": "328 F. 2d 573", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 439150 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/f2d/328/0573-01" ] }, { "cite": "427 F. 2d 1082", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2243513 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/427/1082-01" ] }, { "cite": "206 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "22 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11307593 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/22/0482-01" ] }, { "cite": "250 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 355", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552192 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/39/0355-01" ] }, { "cite": "188 S.E. 2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550688 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0514-01" ] }, { "cite": "181 S.E. 2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565893 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0123-01" ] }, { "cite": "178 S.E. 2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "116" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552700 ], "year": 1970, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0208-01" ] }, { "cite": "125 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "28" } ], "opinion_index": 0 }, { "cite": "256 N.C. 721", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574855 ], "year": 1962, "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0721-01" ] }, { "cite": "141 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "638" } ], "opinion_index": 0 }, { "cite": "264 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572577 ], "year": 1965, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0252-01" ] }, { "cite": "123 S.E. 2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "256 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570780 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/256/0041-01" ] }, { "cite": "123 S.E. 2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "256 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570733 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/256/0034-01" ] } ], "analysis": { "cardinality": 737, "char_count": 16143, "ocr_confidence": 0.816, "pagerank": { "raw": 4.0259854795386444e-07, "percentile": 0.9068132929757681 }, "sha256": "006da3b9508cdba1143ecef2d8b3fa3b004999066f72071386a6f1eb8c30b448", "simhash": "1:f8216435e48de15a", "word_count": 2756 }, "last_updated": "2023-07-14T14:52:50.465071+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DEALERS SPECIALTIES, INC., Plaintiff v. NEIGHBORHOOD HOUSING SERVICES, INC., Defendant and Third Party Plaintiff v. LONNIE AUTRY, Third Party Defendant" ], "opinions": [ { "text": "BRANCH, Chief Justice.\nWe are of the opinion that the majority in the Court of Appeals reached the correct result and except as hereinafter modified we affirm the decision of the Court of Appeals and adopt the reasoning and legal principles enunciated in that decision as our own.\nI\nWe first consider Judge Becton\u2019s dissent which in effect concluded that the agreement between plaintiff and defendant constituted only a conditional promise to pay and was conditioned on Autry\u2019s unfulfilled obligation to complete the project.\nThe trial judge made a total of eleven findings of fact, and the only exception to the findings appear in the record following finding of fact number ten as follows:\nEXCEPTION (to all of the above findings of fact) No. 18\nOur Appellate Rule 10(b)(2) requires in part that \u201c[a] separate exception ... be set out to the making ... of each finding of fact or conclusion of law which is to be assigned as error.\u201d Defendant\u2019s single exception to ten of the court\u2019s findings of fact constituted a \u201cbroadside exception\u201d which this Court has consistently held to be ineffectual. Hicks v. Russell, 256 N.C. 34, 123 S.E. 2d 214 (1961); Logan v. Sprinkle, 256 N.C. 41, 123 S.E. 2d 209 (1961). Defendant thus has taken no valid exception to the findings of fact and consequently, the court\u2019s findings of fact are presumed to be supported by competent evidence, and are binding on appeal. Keeter v. Lake Lure, 264 N.C. 252, 257, 141 S.E. 2d 634, 638 (1965); Insurance Co. v. Trucking Co., 256 N.C. 721, 725, 125 S.E. 2d 25, 28 (1962).\nWe are of the opinion that in the state of this record the judgment for plaintiff could be entered without further consideration since these findings support the trial judge\u2019s conclusions and the conclusions in turn support his judgment entered. However, we elect to consider finding of fact number three which appears to us to be the crucial finding upon which Judge Becton\u2019s dissent was founded. That finding states:\n3. On or about September 29, 1978, Mr. Rimel received a telephone call from a man who identified himself as Ron Con-rady, Assistant Director of the Defendant NEIGHBORHOOD HOUSING Services, Inc. Mr. Conrady informed Mr. Rimel that the Defendant was financing the Penny job and asked the plaintiff to extend credit to the third-party defendant. Mr. Conrady told Mr. Rimel that the plaintiff would be protected (1) by the defendant\u2019s issuing only a two-party check to the third-party defendant, payable to the third-party defendant and the plaintiff, and (2) that the third-party defendant would be required to present lien waivers from all subcontractors and material suppliers before making his final draw from the Defendant. [Emphasis and numbering added.]\nAdmittedly, there are two possible interpretations as to the intent of the parties as reflected in the above finding. However, we think that the more reasonable one is that adopted by the majority in the Court of Appeals. Our consideration of this finding leads us to conclude that it contains two independent provisions. The first portion of the parties\u2019 agreement as set out in this finding states that any check issued to Autry by defendant as a progress payment must be a two-party check to Autry and plaintiff. This procedure would have effectively protected defendant, the homeowner, and plaintiff. In our opinion, the portion of the finding following the conjunction \u201cand\u201d was in addition to and independent of the requirement for joint checks. This latter portion of the finding, \u201cthat the third party defendant would be required to present lien waivers from all subcontractors and material suppliers before making his final draw from defendant,\u201d obviously is conditioned on Autry\u2019s satisfactorily completing the project so as to receive final payment. The reference to the \u201cfinal draw\u201d is limited to the second part of the agreement or finding and does not affect the first portion which requires joint progress checks. There is no mention of two-party checks in relation to the final draw and furnishing of lien waivers. This is properly so for when Autry furnished lien waivers from all subcontractors and material suppliers he would have been entitled to a check in his individual name for whatever funds might have been due him at the final draw.\nUnder our interpretation of this finding, which in our opinion reflects the agreement, a breach of that agreement occurred when plaintiff was not included as a joint payee in the progress payments made by defendant to Autry.\nII\nAlthough not dispositive of this appeal, we would be remiss if we failed to consider a statement appearing in the majority decision of the Court of Appeals to the effect that upon a motion to dismiss under 6.S. 1A-1, Rule 41(b), the trial judge must view the evidence in the light most favorable to plaintiff. This statement in the majority opinion of the Court of Appeals was purely gratuitous since the trial judge properly elected not to rule on defendant\u2019s motion at the close of plaintiff\u2019s evidence.\nOur research reveals that there is some conflict and confusion as to the standard which the judge must apply in testing the sufficiency of the evidence, if he elects to so do, when ruling upon a motion to dismiss under Rule 41(b).\nThe pertinent portion of Rule 41(b) provides:\nAfter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).\nIn Bryant v. Kelly, 10 N.C. App. 208, 213, 178 S.E. 2d 113, 116 (1970), rev\u2019d on other grounds, 279 N.C. 123, 181 S.E. 2d 438 (1971), Judge Parker writing for a unanimous panel of the Court of Appeals considered the function of a trial judge when he sits without a jury and rules upon a motion for an involuntary dismissal under Rule 41(b). He there stated:\nIn a nonjury case, in which all issues of fact are in any event to be determined by the judge, the function of the judge on a motion to dismiss under Rule 41(b) is to evaluate the evidence without any limitations as to the inferences which the court must indulge in favor of the plaintiff\u2019s evidence on a similar motion for a directed verdict in a jury case. (See cases cited in 2B, Barron and Holtzoff, Federal Practice and Procedure, \u00a7 919, interpreting the cognate Federal Rules.) [Emphasis added.]\nThereafter another panel of the Court of Appeals in Rogers v. City of Asheville, 14 N.C. App. 514, 188 S.E. 2d 656 (1972), quoted the above language from Bryant but then concluded, \u201cOur study of the evidence viewed in the light most favorable to plaintiff leads us to the conclusion that there was not sufficient evidence of negligence on the part of defendant to establish a right to relief.\u201d Id. at 517, 188 S.E. 2d at 658. In Sanders v. Walker, 39 N.C. App. 355, 250 S.E. 2d 84 (1979), the Court of Appeals again considering a motion for involuntary dismissal under Rule 41(b) made the following statement:\nA motion to dismiss under G.S. 1A-1, Rule 41(b) raises the question of whether any findings could be made from the evidence to support a recovery. Gibbs v. Heavlin, 22 N.C. App. 482, 206 S.E. 2d 814 (1974); 11 Strong\u2019s N.C. Index 3d, Rules of Civil Procedure \u00a7 41. In ruling on the motion the evidence must be viewed in the light most favorable to the plaintiff. Rogers v. City of Asheville, 14 N.C. App. 514, 188 S.E. 2d 656 (1972).\nId. at 357, 250 S.E. 2d at 85.\nWe are of the opinion that the correct rule was set forth in Bryant v. Kelly, supra. Our conclusion is buttressed by other authorities and treatises.\nIn his 1970 Pocket Part revisal of 1 McIntosh, North Carolina Practice and Procedure (2d ed. 1956), Dean Dickson Phillips takes a similar view of the duty of the trial judge when a motion to dismiss is made under Rule 41(b). We quote therefrom.\nIn a non-jury case, there is no good reason to provide for challenges to the sufficiency of evidence to go to the trier of fact, since the judge who must rule on such a challenge is also the trier of fact. The anomaly of such challenges is most obvious at the conclusion of all the evidence. It is only slightly less so at the conclusion of plaintiff\u2019s evidence. But it may be helpful after plaintiff has rested to have a procedure whereby the judge can give judgment against plaintiff on the basis of facts actually then determined, and not merely on the basis that the evidence considered most favorably is insufficient as a matter of law. Such a determination properly made avoids, just as would a dismissal for legal insufficiency and with less chance of reversal on appeal, the needless expense and time required to put on defendant\u2019s evidence. Rule 41(b) provides such a procedure in the form of the motion for involuntary dismissal. This permits a defendant to move for dismissal at the conclusion of plaintiff\u2019s evidence and the court thereupon to determine the facts and render judgment against the plaintiff.\n5 Moore\u2019s Federal Practice, \u00b6 41.13.3, considers the Federal Rule 41(b), which is substantially the same as ours. In this treatise we find the following statement:\nThus in a court case the trial judge has the power under Rule 41(b) to adjudicate the case on the merits at the conclusion of the plaintiff\u2019s evidence; and is not obliged to consider plaintiffs evidence in a light most favorable to plaintiff as he would have to do in a jury case.\nId. at 188. Accord, Emerson Electric Co. v. Farmer, 427 F. 2d 1082 (5th Cir. 1970); Ellis v. Carter, 328 F. 2d 573 (9th Cir. 1964); Allred v. Sasser, 170 F. 2d 233 (7th Cir. 1948). See also, Wright & Miller, Federal Practice and Procedure: Civil \u00a7 2371 (1971); Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest L. Rev. 1, 36 (1969).\nWhen a motion to dismiss pursuant to 41(b) is made, the judge becomes both the judge and the jury and he must consider and weigh all competent evidence before him. He passes upon the credibility of the witnesses and the weight to be given to their testimony. Knutton v. Cofield, 273 N.C. 355, 160 S.E. 2d 29 (1968); Hodges v. Hodges, 257 N.C. 774, 127 S.E. 2d 567 (1962). Rule 41(b) provides that the trial judge must find facts for the purposes of review; however, he need not act at the close of plaintiff\u2019s evidence, but he should, except in the clearest cases, defer judgment until the close of all evidence. Helms v. Rea, 282 N.C. 610, 194 S.E. 2d 1 (1973).\nThe Court of Appeals incorrectly stated that in ruling upon a motion for involuntary dismissal at the close of plaintiff\u2019s evidence pursuant to Rule 41(b) the evidence must be viewed in the light most favorable to plaintiff. We again emphasize that this error was not decisive of this appeal but that our consideration of this statement of the law was for the purpose of clarifying and correcting confusion that apparently has existed in previous decisions.\nThe decision of the Court of Appeals is\nModified and affirmed.", "type": "majority", "author": "BRANCH, Chief Justice." } ], "attorneys": [ "No appearances by plaintiff.", "Ernest B. Fullwood for defendant." ], "corrections": "", "head_matter": "DEALERS SPECIALTIES, INC., Plaintiff v. NEIGHBORHOOD HOUSING SERVICES, INC., Defendant and Third Party Plaintiff v. LONNIE AUTRY, Third Party Defendant\nNo. 143A81\n(Filed 4 May 1982)\n1. Appeal and Error \u00a7 24.1\u2014 broadside exception \u2014 ineffectual\nWhere the trial judge made a total of eleven findings of fact, and the only exception to the findings appeared after the tenth finding and attempted to object to all of the \u201cabove findings,\u201d under Appellate Rule 10(b)(2) defendant\u2019s single exception constituted a \u201cbroadside exception\u201d and was ineffectual.\n2. Contracts \u00a7 12.1\u2014 independent rather than conditional obligations in contract\nWhere the court found, in an action for the cost of materials, that the parties had agreed \u201cplaintiff would be protected (1) by the defendant\u2019s issuing only a two-party check to the third-party defendant, payable to the third-party defendant and the plaintiff, and (2) that the third-party defendant would be required to present lien waivers from all subcontractors and material suppliers before making his final draw from the defendant,\u201d the portion of the finding following the conjunction \u201cand\u201d was in addition to and independent of the requirement for a joint check.\n3. Rules of Civil Procedure \u00a7 41\u2014 motion to dismiss under Rule 41(b) \u2014light in which judge must view evidence\nThe Court of Appeals incorrectly stated that in ruling upon a motion for involuntary dismissal at the close of plaintiffs evidence pursuant to Rule 41(b) the evidence must be viewed in the light most favorable to plaintiff, since in a court case the trial judge has the power under Rule 41(b) to adjudicate the case on the merits at the conclusion of the plaintiffs evidence and is not obligated to consider plaintiffs evidence in a light most favorable to the plaintiff as he would do in a jury case.\nAPPEAL by defendant as a matter of right, G.S. 7A-30(2), from a decision of the Court of Appeals, 54 N.C. App. 46, 283 S.E. 2d 155 (1981) (opinion by Arnold, J., with Vaughn, J., concurring and Becton, J., dissenting). The Court of Appeals affirmed the judgment of Judge Rice, at the 25 August 1980 Session of District Court, New HANOVER County, granting judgment for plaintiff in the amount of $533.\nPlaintiff, Dealers Specialties, Inc., was engaged in the business of selling building supplies. Defendant, Housing Services, was organized for the purpose of making housing rehabilitation loans to residents in an area of Wilmington. Defendant made a loan to the owners of a home in the area who in turn hired third-party defendant Autry to make the repairs for which the loan had been secured.\nBased on the evidence at trial, Judge Rice found inter alia the following facts:\n1. On or about September 26, 1978, the third-party defendant approached the plaintiff seeking to purchase building materials, on credit, to be used on a job for one Mr. Penny.\n2. The plaintiff\u2019s president and general manager, Harry Rimel, declined to extend credit to the third-party defendant since he knew the latter, and did not believe him to be credit worthy.\n3. On or about September 29, 1978, Mr. Rimel received a telephone call from a man who identified himself as Ron Con-rady, Assistant Director of the Defendant NEIGHBORHOOD HOUSING Services, INC. Mr. Conrady informed Mr. Rimel that the Defendant was financing the Penny job and asked the plaintiff to extend credit to the third-party defendant. Mr. Conrady told Mr. Rimel that the plaintiff would be protected by the defendant\u2019s issuing only a two-party check to the third-party defendant, payable to the third-party defendant and the plaintiff, and that the third-party defendant would be required to present lien waivers from all subcontractors and material suppliers before making his final draw from the Defendant.\n* * *\n6. Thereafter, plaintiff extended credit to the third-party defendant for materials purchased in the sum of FIVE HUNDRED Thirty Three And No/100 Dollars ($533.00).\n7. When the checks were issued to the third-party defendant, the plaintiff was not included as a joint payee.\n8. Ron Conrady was, at all times pertinent hereto, the employee, servant, and agent of the defendant, and had apparent authority to contractually bind the defendant to issue only a two-party check to the third-party defendant and the plaintiff as joint payees, and to, further, require lien waivers before issuing the third-party defendant\u2019s final draw.\n* * *\n10. Said promise was a direct and unconditional promise to pay for goods furnished to the third-party defendant, was made prior to delivery of the goods, and said goods were actually delivered.\n11. The plaintiff has never been paid by the defendant, the third-party defendant, or anyone else for said materials.\nNo appearances by plaintiff.\nErnest B. Fullwood for defendant." }, "file_name": "0633-01", "first_page_order": 665, "last_page_order": 672 }