Annotate this Case

212 S.E.2d 190 (1975)

25 N.C. App. 56

James F. FREEMAN v. STURDIVANT DEVELOPMENT COMPANY and Foster-Sturdivant Company, Inc.

No. 7425SC985.

Court of Appeals of North Carolina.

March 5, 1975.

*192 Tate, Weathers & Young by E. Murray Tate, Jr., Hickory, for plaintiff-appellant.

Vannoy, Moore & Colvard by J. Gary Vannoy, North Wilkesboro, for defendants-appellants.

ARNOLD, Judge.


Defendants initially contend that the trial court erred in denying their motion for summary judgment. As movants under Rule 56 they had the burden of establishing the lack of a triable issue of fact. Houck v. Overcash, 282 N.C. 623, 193 S.E.2d 905 (1973); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Hinson v. Jefferson, 20 N.C.App. 204, 200 S.E.2d 812 (1973). Papers of the opposing party are indulgently regarded and all inferences drawn in his favor. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). Viewing in this manner the materials offered, we hold that the question of whether a firm financial commitment was obtained under the terms of the assignment was a genuine issue for trial. Defendants offered affidavits to the effect that no firm financial commitment was secured during the term of the option or any extension. In opposition plaintiff submitted an affidavit stating that "Brian Applefield, agent and officer of the defendants, notified this affiant during the option period that Sturdivant Development Company had received a firm financial commitment. . .." Defendants' motion was properly denied.

Defendants further contend that it was error to direct a verdict for plaintiff on their counterclaim. This argument is without merit. Even when the case is viewed in the light most favorable to defendants, there is no evidence from which a jury could find any fraudulent misrepresentation on the part of Freeman.

Finally, defendant Sturdivant Development Co. contends that the court erred in directing a verdict for plaintiff on his first cause of action for breach of contract. Defendant argues that under the decision of our North Carolina Supreme Court in Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971), it is improper to direct a verdict in favor of the party with the burden of proof. *193 We read Cutts v. Casey to preclude such a ruling only when the party's right to recover depends upon the credibility of his witnesses. Id. at 417, 180 S.E.2d at 311. In the instant case, plaintiff's credibility is not in issue, and the rule enunciated in Cutts v. Casey is not controlling. Nevertheless, applying the general rules applicable to motions for directed verdict, we believe that directing a verdict for plaintiff was not proper in this case.

In considering a motion for directed verdict, the court must view the evidence in the light most favorable to the nonmoving party, giving to it the benefit of all reasonable inferences and resolving all inconsistencies in its favor. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973); Bowen v. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973). The motion should be granted only if, as a matter of law, the evidence is insufficient to support a verdict for the nonmovant. See Younts v. Ins. Co., 281 N.C. 582, 189 S.E.2d 137 (1972); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). See generally 5A Moore's Federal Practice § 50.02 [1] (1974). Viewing in this manner the evidence presented, we are of the opinion that the evidence was sufficient to go to the jury on the crucial question: Did Sturdivant Development Co. obtain a firm financial commitment during the period of the option or any extension thereof?

Plaintiff introduced in evidence the option agreement with ABC&M and the contract assigning the option to Sturdivant. He also introduced a copy of an agreement executed 24 February 1972 in which ABC&M gave to Dollar Organization, Inc. (Dollar) an option to purchase the property on or before 25 May 1972. Plaintiff testified that sometime during the two option periods he had conversations with officers of Sturdivant who told him the project was progressing. He also said he had been worried that Sturdivant might not obtain a firm financial commitment before the option expired.

Defendants offered evidence which tended to show the following: They did not obtain a financial commitment before 25 February 1972, the expiration date of Freeman's option. Nor did they obtain financing before 25 May 1972 when Dollar's option expired. On 28 June 1972 defendants' president, Alvin Sturdivant, wrote a letter to Freeman advising him that a firm financial commitment was not forthcoming. Sometime after 25 May 1972, Foster-Sturdivant arranged with the Richardson Corporation to finance the construction of an apartment complex on the property. These two firms then acquired a lease effective 1 August 1972.

In light of the foregoing evidence, we hold that the trial court erred in directing a verdict for plaintiff against defendant Sturdivant Development Co.


Plaintiff contends that the trial court erred in directing verdicts for Sturdivant on his second cause of action, recovery in quantum meruit, and for Foster-Sturdivant on both causes of action. Viewing the evidence in the light most favorable to plaintiff, the nonmovant, we agree.

It is well settled that when a plaintiff "alleges and proves acceptance of services and the value thereof . . . he may go to the jury on quantum meruit." Helicopter Corp. v. Realty Co., 263 N.C. 139, 148, 139 S.E.2d 362, 368-69 (1964); Yates v. Body Co., 258 N.C. 16, 128 S.E.2d 11 (1962); Allen v. Seay, 248 N.C. 321, 103 S.E.2d 332 (1958). See also 1 McIntosh, N.C. Practice 2d, § 1133. The evidence showed that Sturdivant, Dollar, and Foster-Sturdivant each had the same president and the same secretary. Alvin Sturdivant testified that the names were used interchangeably, referring to all three corporations as "we". He also testified that before 25 May 1972, when Dollar's option expired, defendants entered into a "gentlemen's agreement" with ABC&M to preserve their rights for an additional period. In mid-July they entered *194 into an agreement with the Richardson Corporation for the construction of an apartment complex and subsequently secured a lease from ABC&M's successors in title.

There was sufficient evidence from which the jury might find that Sturdivant and Foster-Sturdivant were one and the same, that they obtained a firm financial commitment during an extension of the option, and that both are liable for the additional $15,000 under plaintiff's contract with Sturdivant. However, should the jury not so find, there is still evidence to support a verdict for plaintiff on the theory of quantum meruit. See generally 6 Strong, N.C. Index 2d, Quasi Contracts, §§ 1-2, pp. 528-33. It is clear that Foster-Sturdivant ultimately obtained financing and derived benefit from plaintiff's original option. If both defendants are treated as a single entity, Sturdivant benefitted as well. We hold therefore that plaintiff was entitled to go to the jury on both the express contract and on the quantum meruit as to each defendant.

The decision of this Court is that the judgments below be

Reversed as to directed verdict for plaintiff on first cause of action against Sturdivant Development Co.

Reversed as to directed verdict for defendant Sturdivant Development Co. on second cause of action.

Reversed as to directed verdict for defendant Foster-Sturdivant Co. on both causes of action.

VAUGHN and MARTIN, JJ., concur.