Airport Knitting, Inc. v. King Kotton Yarn Co.

180 S.E.2d 611 (1971)

11 N.C. App. 162

AIRPORT KNITTING, INC. v. KING KOTTON YARN CO., Inc.

No. 7125SC190.

Court of Appeals of North Carolina.

April 28, 1971.

Kenneth D. Thomas, Hickory, for plaintiff-appellee.

Keener & Cagle, by Joe N. Cagle, Hickory, for defendant-appellant.

*612 MORRIS, Judge.

In ruling on a motion to dismiss under Rule 41(b), applicable only "in an action tried by the court without a jury", the court must pass upon whether the evidence is sufficient as a matter of law to permit a recovery; and, if so, must pass upon the weight and credibility of the evidence upon which the plaintiff must rely in order to recover. Bryant v. Kelly, 10 N.C. App. 208, 178 S.E.2d 113 (1970).

The evidence in this case tended to show: One Cecil Owenby (Owenby) was president and principal stockholder of Airport Knitting Company and terminated his employment with that company in 1966. During 1966 he and Mr. Ralph Johnson organized the King Kotton Yarn Company. Ralph Johnson (Johnson) became president of defendant and Owenby became secretary thereof. During that year the two discussed the sale by plaintiff to defendant of certain items of inventory and property owned by plaintiff. Owenby went with defendant in July or August of 1966. About that time and later quite a few discussions were had on the price of the items. Johnson asked Owenby to discuss the matter with Mr. Capps, a C.P.A. employed by defendant in 1967 to audit its books for the fiscal year ended 31 July 1967. Owenby did so, and as a result of that conference, the items were shown on the books of defendant as an account payable to plaintiff. Owenby identified plaintiff's Exhibit No. 1 as a ledger sheet of defendant showing a total of $9279.35 for the items transferred. Mr. Capps testified that plaintiff's Exhibit No. 1 was not a ledger sheet but his worksheet and that the assets transferred included the truck and the yarn inventory at $3300. He was of the opinion the assets were transferred at 30 September 1966. He testified that defendant's fiscal year ended 31 July 1967 and "that was when the engagement was made for us to perform the audit at that time." He was instructed to get with Owenby and make a list of the assets transferred. After he sat down with Owenby and came up with those figures, Johnson approved the figures. They were carried in the book as an account payable and reflected in the balance sheet for 1967 prepared by Mr. Capps' firm. Johnson testified that he and Owenby did agree as to the value of the truck. "The company got the truck at a good buy for $685.02" and "I believe that Mr. Owenby and I reached an agreement about the value of the office equipment$735.00." As the result of a fire in some machinery, some yarn was damaged, and defendant was paid by the insurance carrier in May of 1967 approximately $1800 for the damage as a result of the fire. Owenby testified that part of the yarn in question was damaged. Johnson testified that none of the yarn in question was damaged by the fire. Some of the yarn in question was sold, defendant getting the proceeds of sale. Neither Owenby nor Johnson was able to testify as to the amount sold. The transfer of the assets of plaintiff to defendant was a separate transaction from the acquisition by Owenby of his stock in defendant and the assets were not transferred for stock.

The court found facts as follows:

"1. That prior to and subsequent to December 1966, Plaintiff, Airport Knitting, Inc., a North Carolina corporation, and Defendant, King Kotton Yarn Company, Inc., a North Carolina corporation, entered into agreements for Plaintiff to transfer to Defendant certain assets and that pursuant to said agreements, Plaintiff transferred to defendant a truck, office equipment, and certain yarn inventory. 2. That Plaintiff transferred said truck, office equipment, and certain yarn inventory to Defendant in reliance upon Defendant's promise to pay Plaintiff for same and that Defendant has not paid Plaintiff for the purchase price of said items. *613 3. That Defendant is indebted to Plaintiff for the truck in the sum of Six Hundred Eighty-five and 02/100 ($685.02); for the office equipment in the sum of Seven Hundred Thirty-five and 96/100 ($735.96); and for certain yarn inventory in the amount of Three Thousand Three Hundred ($3,300.00) and that Defendant has not paid any of said amounts to Plaintiff. 4. That Defendant is therefore indebted to Plaintiff in the sum of Four Thousand Seven Hundred Twenty and 98/100 $4,720.98), and that Plaintiff is entitled to recover judgment against the Defendant in said sum of Four Thousand Seven Hundred Twenty and 98/100 ($4,720.98) with interest from the 14 day of Oct. 1970."

We are of the opinion, and so hold, that the court correctly overuled defendant's motion for dismissal and further that the facts found are supported by competent evidence and are sufficient to support the judgment.

In passing upon the weight and credibility of the evidence, the court must resolve all inconsistencies and conflicts in the evidence. As to its affirmative defense, defendant had the burden of convincing the court by the greater weight of the evidence that plaintiff's claim was barred by the statute of limitations. The entry of the judgment in favor of plaintiff, of course, evidences the fact that the court was not so convinced. Our study of the evidence discloses nothing requiring that result to be disturbed.

Affirmed.

BROCK and HEDRICK, JJ., concur.