Wallace Men's Wear, Inc. v. Harris

220 S.E.2d 390 (1975)

28 N.C. App. 153

WALLACE MEN'S WEAR, INC. (formerly known as Coffman-Wallace, Inc.) v. Reid V. HARRIS and Mary A. Harris.

No. 757DC625.

Court of Appeals of North Carolina.

December 17, 1975.

Certiorari Denied February 3, 1976.

*392 Battle, Winslow, Scott & Wiley, P.A. by Jasper L. Cummings, Jr., Rocky Mount, for plaintiff-appellee.

Allsbrook, Benton, Knott, Allsbrook & Cranford by J. E. Knott, Jr., Roanoke Rapids, for defendant-appellant.

Certiorari Denied by Supreme Court February 3, 1976.

ARNOLD, Judge.

In his first assignment of error defendant contends that it was error to admit into evidence the plaintiff's 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 prepared and therefore admissible.

We need not rule on whether the itemized statement was timely prepared in this case because the defendant stipulated in the "Order on Pretrial Conference" 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, "Trial" § 6, p. 262; see Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123 (1960). Clearly, the statement was relevant and material.

Defendant next assigns error to the court's 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's account.

In passing upon a motion for directed verdict all the evidence tending to support plaintiff's 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's favor. Defendant's 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).

The plaintiff's 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's 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.

In defendant's 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).

*393 The judgment is

Affirmed.

BRITT and VAUGHN, JJ., concur.