Kight v. Harris

234 S.E.2d 637 (1977)

33 N.C. App. 200

Garland L. KIGHT d/b/a Norfolk Marine Company v. Lance HARRIS and Wahoo-Sportsman, Inc.

No. 761DC859.

Court of Appeals of North Carolina.

May 4, 1977.

*638 McMullan & Knott by Lee E. Knott, Jr., Washington, for plaintiff-appellant.

Twiford, Seawell, Trimpi & Thompson by Christopher L. Seawell, Manteo, for defendant-appellee.

ARNOLD, Judge.

Plaintiff contends that judgment should have been entered for the total amount represented by the statement of account, $1,906.97. He argues that the verified statement of account which was offered into evidence was unrefuted by any other evidence, and he relies on G.S. 8-45:

"In any actions instituted in any court of this State upon an account for goods sold and delivered . . ., a verified itemized statement of such account shall be received in evidence and shall be deemed prima facie evidence of its correctness."

In finding of fact number six the court found that plaintiff "sold and delivered" to Wahoo-Sportsman, Inc., various goods which the court listed by invoice numbers and which the court found were respectively signed by Bob Sullivan and James Curling, former officers of Wahoo-Sportsman, Inc., and one invoice signed by Harris, the sole stockholder. In finding number seven the court found that the additional invoices introduced by plaintiff did not show "that any of the officers, directors or agents of the defendant Wahoo-Sportsman, Inc., purchased, charged or received" any goods from plaintiff. And in finding number eight the court found that no one except officers or directors of the defendant corporation had authority "to purchase or charge" any merchandise with plaintiff.

The court's findings are supported by competent evidence, and they are thus binding on appeal.

An examination of the invoices indicates that all of the invoices contain a space for the "Customer's Signature" which also provides: "Order Received in Good Condition as Stated Above." In a large number of the invoices contained in plaintiff's exhibit there is either no signature in the space provided or the signature is illegible. Neither plaintiff nor any of plaintiff's employees testified, and there is no other evidence in the record tending to show to whom the goods listed on these invoices were sold or delivered. The court properly *639 disregarded this group of invoices. To make out a prima facie case under G.S. 8-45 the account not only must be properly verified and itemized, it must also be stated so as to show an indebtedness. See Knight v. Taylor, 131 N.C. 84, 42 S.E. 537 (1902).

A second group of invoices purporting to show that merchandise was sold and delivered to Wahoo-Sportsman, Inc., were all signed by one Throckmorton, who, according to the evidence in the record, was neither an officer nor employee of Wahoo-Sportsman, Inc. He was the employee of a person whose boat was at the time in storage at the Wahoo-Sportsman premises, and there is no evidence tending to show that Throckmorton had authority to order or accept goods for Wahoo-Sportsman, Inc. There is not even evidence to show that Throckmorton was held out to be an agent so as to raise the question of his apparent authority to buy or receive goods for Wahoo-Sportsman, Inc. Throckmorton's signature on this group of invoices provides no evidence that the goods listed on the invoices were sold or delivered to Wahoo-Sportsman, Inc.

A single invoice was signed by Randolph Thomas, an employee of Wahoo-Sportsman. However, evidence supports the finding that only officers and directors had authority to purchase or charge goods, and Thomas was neither an officer nor a director. The uncontradicted evidence, in fact, is that Thomas had no authority to purchase or charge goods for Wahoo-Sportsman.

The remaining invoices were signed either by officers of the corporation, Sullivan and Curling, or the sole stockholder, Harris. This is evidence supporting the finding that the goods itemized by the invoices signed by Sullivan, Curling and Harris were sold and delivered to Wahoo-Sportsman, Inc.

Plaintiff's second contention, that the court erred in dismissing the action against Harris, is untenable. Plaintiff argues that Wahoo-Sportsman, Inc. was the alter ego of Harris, who caused work to be done on his personal property by his solely owned corporation. However, there is no evidence to show that Harris treated Wahoo-Sportsman, Inc. as a mere alter ego, and dismissal of the action as to Harris was proper.

Judgment of the trial court is

Affirmed.

MORRIS and HEDRICK, JJ., concur.