Thompson & Little, Inc. v. Colvin , 46 N.C. App. 774 ( 1980 )

ERWIN, Judge.

A motion for a directed verdict under G.S. 1A-1, Rule 50, of the Rules of Civil Procedure raises the question of whether the evidence, considered in the light most favorable to the plaintiff, would support a verdict in his favor. Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971). In the present case, we find that the evidence presented is sufficient to support a verdict for plaintiff and that a directed verdict for defendant was improper.

The evidence, taken in the light most favorable to the plaintiff, shows the following. After plaintiff and Colvin had executed the conditional sale agreements and the equipment had been installed, Colvin transferred to defendant the land and building and discussed with him defendant’s taking over the indebtedness on the equipment. Colvin gave defendant the sale contracts and information about the amount due. Plaintiff, defendant, and Colvin then met, and at that meeting, defendant said that he wanted to “come in and take [the contracts] over.” Plaintiff told defendant this could not be done by word-of-mouth; there would have to be a writing. The parties met again a few days later, and to that meeting, defendant brought a document which quitclaimed to defendant all of Colvin’s interest in the equipment. At that time, plaintiff provided to defendant information about the amount due on the contracts, and defendant told plaintiff “not to bother Mr. Colvin any more at any time and that everything would be under him.” Subsequently, plaintiff received from defendant two checks marked "for equipment A & T Restaurant.”

Upon this evidence, the jury could find that at the first meeting, defendant offered to take over Colvin’s indebtedness, and plaintiff agreed, upon the condition that some documentation be provided. O’Quinn did not specifically state that this document must evidence the assumption agreement, and in fact, he testified that what he meant was a document “to show that Mr. Colvin had transferred the equipment to Mr. Harris.” At the second meeting, defendant provided such a document and told plaintiff not to bother Colvin anymore, “that everything would be under him.” Subsequently, defendant made two payments on the equipment. The evidence is sufficient to support a finding that defendant agreed to assume Colvin’s indebtedness. There is evidence that plaintiff released Colvin from liability, which would provide consideration for the agreement. Since such a contract would be neither a promise to answer for the debt of another nor a contract for the sale of goods for $500 or more, as defendant alleged, the Statute of Frauds does not apply, and plaintiff was not required to enter into evidence a memorandum of the agreement.

The judgment of the trial court is reversed. We need not address plaintiff’s second argument, since the purported error to which it relates may not recur at a

New trial.

Judges Hedrick and Arnold concur.