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 1984-06

Gadson v. Toney , 69 N.C. App. 244 ( 1984 )


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  • 316 S.E.2d 320 (1984)

    Willie Gene GADSON
    v.
    Mary Black TONEY.

    No. 8321DC918.

    Court of Appeals of North Carolina.

    June 19, 1984.

    *321 Habegger & Johnson by Julia Hines Turner, Winston-Salem, for plaintiff, appellant.

    No counsel contra.

    HEDRICK, Judge.

    "In this state, 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.'" Spinks v. Taylor, 303 N.C. 256, 264, 278 S.E.2d 501, 506 (1981) (quoting Peed v. Burleson's, Inc., 244 N.C. 437, 439, 94 S.E.2d 351, 353 (1956)). To recover on a claim for conversion, plaintiff must prove both ownership in himself and the wrongful *322 possession or conversion of the property by the defendant. Coulbourn v. Armstrong, 243 N.C. 663, 91 S.E.2d 912 (1956). Summary judgment is inappropriately granted when the evidence raises a genuine issue as to whether defendant's possession of plaintiff's property is authorized or wrongful. Burns v. McElroy, 57 N.C.App. 299, 291 S.E.2d 278 (1982).

    In the instant case there is evidence tending to show that defendant had authority to withdraw plaintiff's money from the account. The account was a joint account, as evidenced by the signature card and passbook, and plaintiff had given defendant a power of attorney. Nevertheless, this evidence is not sufficient to establish as a matter of law defendant's right to the sums deposited by plaintiff. When the evidence is considered in the light most favorable to the plaintiff, it is sufficient to raise an inference that plaintiff was the owner of the money in the joint account and that defendant wrongfully assumed and exercised the right of ownership over that property to the exclusion of plaintiff's rights as owner.

    For the foregoing reasons, the judgment directing a verdict for defendant will be reversed and the cause remanded to the District Court for a new trial.

    Reversed and remanded.

    VAUGHN, C.J., and WELLS, J., concur.