WILSON ELECTRIC COMPANY v. Robinson

189 S.E.2d 758 (1972)

WILSON ELECTRIC COMPANY, Inc. v. Dr. James E. ROBINSON and his wife, Vera S. Robinson.

No. 7221SC249.

Court of Appeals of North Carolina.

June 28, 1972.

*759 Ralph E. Goodale by Gregory W. Schiro, Winston-Salem, for plaintiff appellant.

Hudson, Petree, Stockton, Stockton & Robinson by Norwood Robinson and George L. Little, Jr., Winston-Salem, for defendant appellees.

GRAHAM, Judge.

Through its first seven assignments of error, plaintiff contends that the court erred in (1) denying plaintiff's motion for summary judgment on defendants' claim for slander of title, (2) refusing to direct a verdict for plaintiff on the issues relating to that claim, and (3) erroneously *760 charging the jury in several respects as to these issues. These assignments of error are overruled.

All issues having to do with defendants' counterclaim for slander of title were answered in plaintiff's favor. Error, if any, in portions of a jury charge relating to issues answered in favor of the party asserting the error is harmless. Key v. Merritt-Holland Welding Supplies, Inc., 273 N.C. 609, 160 S.E.2d 687; Wooten v. Cagle, 268 N.C. 366, 150 S.E.2d 738; Prevette v. Bullis, 12 N.C.App. 552, 183 S.E.2d 810. Moreover, the judgment, based upon the jury's verdict, dismisses defendants' counterclaim. Where a claim has been dismissed, based upon a jury verdict, the party against whom the claim was asserted is not aggrieved and may not contend upon appeal that the court committed error in permitting the jury to consider the issues relating to the claim. Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361.

Plaintiff next contends that the court abused its discretion in refusing to order a new trial and in entering judgment on the verdict.

Plaintiff had the burden of showing, not only that it performed labor or furnished materials for the making of an improvement on defendants' property, but also that the labor was performed or the materials were furnished "pursuant to a contract, either express or implied," with defendants. G.S. § 44A-8. Much of the evidence offered by plaintiff and all of the evidence offered by defendants tended to show that plaintiff's contract was with the general contractor employed to build the house, and not with defendants. Under these circumstances the trial court acted properly in accepting the verdict of the jury and entering judgment thereon.

No error.

MORRIS and VAUGHN, JJ., concur.