Myers v. CATOE CONST. CO.

343 S.E.2d 281 (1986)

Gary MYERS v. CATOE CONSTRUCTION COMPANY and Robert F. Catoe, Sr.

No. 8526SC1158.

Court of Appeals of North Carolina.

May 20, 1986.

*282 William D. McNaull, Jr., Charlotte, for plaintiff-appellee.

Winfred R. Erwin, Jr., Charlotte, for defendants-appellants.

HEDRICK, Chief Judge.

By their first assignment of error, defendants contend that the trial court erred in failing to grant their motion for directed verdict at the close of all the evidence. Defendants argue that because there is uncontradicted evidence showing plaintiff breached the contract, plaintiff is precluded from recovering as a matter of law.

When considering a defendant's motion for directed verdict, the plaintiff's evidence must be taken as true and be considered in the light most favorable to him. A directed verdict may be granted only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. Hawks v. Brindle, 51 N.C.App. 19, 275 S.E.2d 277 (1981). Plaintiff testified that he met his contractual obligations. This evidence is sufficient to withstand a motion for directed verdict. Furthermore, performance of all contractual obligations is not always required before a party may sue for breach of contract. McAden v. Craig, 222 N.C. 497, 24 S.E.2d 1 (1943). Defendants' first assignment of error is without merit.

*283 Defendants next contend that the trial court erred in granting plaintiff's motion for directed verdict on defendants' counterclaim for conversion of Catoe Construction Company's El Camino. When considering a motion for directed verdict, the non-moving party's evidence must be taken as true and be considered in the light most favorable to him and a directed verdict may be granted only if, as a matter of law, the evidence is insufficient to justify a verdict for the non-moving party. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). If the evidence is of such character that reasonable people may form divergent opinions of its import, the issue is for the jury. Insurance Co. v. Cleaners, 285 N.C. 583, 206 S.E.2d 210 (1974).

In North Carolina, conversion is defined as an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights. See e.g. Gadson v. Toney, 69 N.C.App. 244, 316 S.E.2d 320 (1984). "Where there has been no wrongful taking or disposal of the goods, and the defendant has merely come rightfully into possession and then refused to surrender them, demand and refusal are necessary to the existence of the tort." Hoch v. Young, 63 N.C.App. 480, 483, 305 S.E.2d 201, 203 (1983) (quoting W. Prosser, The Law of Torts Sec. 15 (4th ed. 1971)).

In the instant case, there is evidence tending to show that Mr. Myers' initial possession of the El Camino was not wrongful, that Mr. Myers retained possession of Catoe Construction Company's El Camino after he stopped working for Catoe Construction, and that Mr. Myers did not return the El Camino after Mr. Catoe wrote Myers a letter requesting Myers return the vehicle. This evidence presented at trial is sufficient to withstand directed verdict. Directed verdict for plaintiff on defendants' conversion counterclaim must be reversed.

Defendants also contend that the trial court committed reversible error by denying their motion for a new trial. Defendants argue that the portion of the verdict appraising the value of one-half of the improved beach property at one dollar was unsupported by the evidence. We agree. The parties agreed to transfer one-half the improved property in exchange for approximately $7,000 worth of stock in Catoe Construction Company. Other evidence supported a higher valuation but no evidence supported a lower valuation. The jury's verdict was unsupported by the evidence and therefore the trial court erred in denying defendants' motion for a new trial. See Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974).

A court granting a new trial may in its discretion grant a partial new trial on one issue rather than a new trial on all issues. Under the circumstances before us, there is reason to believe that the jury awarded defendants only one dollar for the one-half interest in the beach property because it subtracted $7,000 from plaintiff's award. We therefore reverse and remand for a new trial on all the issues.

We need not address defendants' remaining assignment of error regarding the jury instruction.

Dismissal of defendants' counterclaim regarding conversion of the El Camino is reversed, and the cause is remanded for trial. Judgment on plaintiff's and defendants' contract claims is reversed and remanded for a new trial on all the issues.

Reversed and remanded.

EAGLES and COZORT, JJ., concur.