Paul A. Bennett Realty Co. v. Hoots , 7 N.C. App. 362 ( 1970 )

HedRicií, J.

The sole question before this Court is whether the trial court committed error in granting the defendant’s motion for judgment as of nonsuit. An appeal from a judgment as of nonsuit presents to the court the question of whether the evidence, considered in the light most favorable to the plaintiff, is sufficient to be submitted to the jury. Cutts v. Casey, 271 N.C. 165, 155 S.E. 2d 519 (1967). Whether the evidence is sufficient to carry the case to the jury is a question of law and is always to be decided by the court. Ward v. Smith, 223 N.C. 141, 25 S.E. 2d 463 (1943).

In the present case, the plaintiff, a corporation, alleged that an express or implied contract existed between it and the defendant Hoots for one-half of the commissions the defendant received from the sale of real estate. The plaintiff alleged that a custom existed in the real estate profession whereby a listing broker would forward to the selling broker one-half of the commission received for the sale of real estate and that the defendant was aware of that custom and had agreed with the plaintiff corporation to honor the custom but that he had subsequently refused to do so. The evidence presented at the trial by the plaintiff corporation through Paul A. Bennett revealed that all of the negotiations in connection with the sale and purchase of this property were between Paul A. Bennett, individually, and the defendant Hoots. We have searched the record of the proceeding below and have not found one scintilla of evidence which would support the plaintiff corporation’s allegations that it was entitled to one-half of the commissions in dispute. There is nothing in the evidence which would serve to notify the defendant that he was dealing with Paul A. Bennett as anyone other than Paul A. Bennett, an individual. The plaintiff corporation failed to introduce any evidence of a contract, either express or implied, between it and the defendant Hoots. “A plaintiff must make out his case secundum allegata. Barnes v. Caulbourne, 240 N.C. 721, 83 S.E. 2d 898. There can be no recovery except on the case made by his pleading. Collas v. Regan, 240 N.C. 472, 82 S.E. 2d 215. Proof without allegation is no better than allegation without proof. Messick v. Turnage, 240 N.C. 625, 83 S.E. 2d 654. When there is a material variance between allegation and proof, motion for judgment of nonsuit will be allowed. Suggs v. Braxton, 227 N.C. 50, 40 S.E. 2d 470.” Andrews v. Bruton, 242 N.C. 93, 86 S.E. 2d 786 (1955). See also Noland v. Brown, 258 N.C. 778, 129 S.E. 2d 477 (1963); Lucas v. White, 248 N.C. 38, 102 S.E. 2d 387 (1958). Whether a variance is material must be determined in light of the facts of each case. Spaugh v. Winston-Salem, 249 N.C. 194, 105 S.E. 2d 610 (1958). We believe that in the present case there was a material variance between the allegations and the proof and that the nonsuit was proper; therefore, the judgment of the District Court is affirmed.

Affirmed.

Campbell and PARKER, JJ., concur.