Phillips v. Auto Finance Co. of North Carolina, Inc., 244 N.C. 220 (1956)

May 23, 1956 · Supreme Court of North Carolina

244 N.C. 220

C. J. PHILLIPS and WiFe, OPAL H. PHILLIPS, v. AUTO FINANCE COMPANY OF NORTH CAROLINA, INC., a Corporation.

(Filed 23 May, 1956.)

Appeal by plaintiffs frQm Crissman, J., at 26 September, 1955 Civil Term of Guilford, Greensboro Division.

Civil action to recover for penalty for usurious interest allegedly exacted by defendant in connection with sale of a certain automobile by Ingram Motor Company acting as agent for Auto Finance Company.

Defendant, answering, denies all material allegations of the complaint.

Upon trial in Superior Court plaintiffs undertook to offer oral and documentary evidence, much of which was excluded by the trial court over their objection. Motion for judgment as of nonsuit was allowed when plaintiffs rested their case.

Plaintiffs excepted thereto, and from judgment in accordance therewith appeal to Supreme Court and assign error.

Merritt & Haines for Plaintiffs Appellants.

George C. Hampton, Jr., for Defendant Appellee.

Per Curiam.

The record and case on appeal present, in the main, a case of allegation without proof. For instance, there is allegation of agency but no competent proof of it. See D’Armour v. Hardware Co., 217 N.C. 568, 9 S.E. 2d 12. There is oral testimony of declarations of individuals, but no proof that such persons are agents of defendant. And some documents are not properly identified for admission in evidence. Hence in the exclusion of evidence prejudicial error is not made to appear. And taking all of the evidence in the light most favorable to plaintiffs, motion for judgment as of nonsuit was properly granted. The case of White v. Disher, 232 N.C. 260, 59 S.E. 2d 798, on which plaintiffs rely is distinguishable from case in hand.

No error.