dissenting in part.
I agree with the majority that the trial court did not err in denying the plaintiffs’ motion to amend their pleadings. I further agree, for the reasons given by the majority, that the granting of the Drums’ motion for directed verdict was not error. I do not agree, however, that directed verdict for Balls Creek was proper on the plaintiffs’ first claim for relief: money loaned and not repaid. On that claim the plaintiffs have presented “more than a scintilla” of evidence and are entitled to have that claim resolved by a jury.
The evidence in the light most favorable to the plaintiffs reveals that they loaned approximately $158,500.00 to Balls Creek, a corporation. Balls Creek was sold by its owners, the Drums, to James Read, with the understanding that James Read would assume the Balls Creek debt to the plaintiffs. On 9 September 1994, James Read executed a promissory note in the sum of $158,500.00 payable to the plaintiffs and agreed to assume the Balls Creek debt to the plaintiffs. On 12 September 1994, Jack Boyd signed a letter addressed to the Drums stating that he agreed “that the [Balls Creek] debt is transferred to [James] Read . . . and that [Balls Creek] will have no further liability [for that debt] after [the sale of Balls Creek to James Read].” Linda Boyd did not sign this letter. After the sale, James Read made eleven payments to the plaintiffs leaving a balance due on the note, as of 1 September 1995, in the amount of $157,645.80.
Balls Creek argues that the letter signed by Jack Boyd on 12 September 1994 constitutes a release of Balls Creek from any further liability on the debt and that it is therefore entitled to directed ver-*595diet. The plaintiffs, relying on Russ v. Harper, 156 N.C. 444, 72 S.E. 570 (1911), argue that the release does not bar their claim because it was not under seal. In any event, the plaintiffs contend that the release is without valuable consideration and even if there is valuable consideration, it is not binding on Linda Boyd because it was not signed by her.
The Russ case, relied upon by the plaintiffs, does hold that the writing therein could not be treated as a “technical release” because it was not under seal. Russ, 156 N.C. at 450, 72 S.E. at 573. It is a mistake, however, to read that case as holding that all releases must be under seal in order to be valid. It is true that at common law a release was “technically an instrument under seal.” 66 Am. Jur. 2d Release § 5 (1973). A release, however, is nonetheless “good without a seal where full payment has been made or other sufficient consideration has been given therefor.” Id. Thus, the absence of a seal on the letter from James Boyd to the Drums does not disqualify it from constituting a valid release of the Balls Creek debt. The question instead is whether the purported release was given for valuable consideration. Balls Creek argues that the execution of the promissory note by James Read to the plaintiffs constitutes valuable consideration for the release. While this is some evidence in support of Balls Creek’s argument, it is not conclusive because the note was executed three days before the execution of the purported release.
Even if this record supported a determination as a matter of law that the letter signed by Jack Boyd was a valid release supported by valuable consideration, the release was not executed by Linda Boyd. The majority holds that because “[Linda] Boyd accepted benefits of the [eleven] payments, [Jack] Boyd acted as her agent when he signed the release.” This is some evidence in support of Balls Creek’s argument, but, again, it is not conclusive. Agency between a husband and wife is not to be implied and must be shown by either direct evidence or “evidence of such facts and circumstances as will authorize a reasonable and logical inference that he was empowered to act for her.” Norburn v. Mackie, 262 N.C. 16, 23, 136 S.E.2d 279, 284 (1964). On this record, there is no direct evidence of agency between Jack and Linda Boyd and whether the evidence, in this case, permits a “reasonable and logical inference” of agency requires resolution by a fact-finder and is not subject to resolution as a matter of law. The retention, by Linda Boyd, of some of the benefits of the bargain made by Jack Boyd cannot by itself establish an agency relationship between the spouses. Admittedly, retention of such benefits can *596support a finding of agency, but only if there is other evidence of agency in the record. Even assuming the existence of some evidence of agency, the evidence is not conclusive that Linda Boyd retained any of the benefits of the bargain. Although eleven checks were made payable to Linda and Jack Boyd, the record is silent as to whether Linda Boyd retained any direct or indirect benefit from those payments.
In summary, there is sufficient evidence to require submission to the jury of the question of whether the release executed by Jack Boyd was given for valuable consideration and, if so, whether Jack Boyd acted as the agent for his wife Linda Boyd in executing the release. This record does not, however, support a conclusion as a matter of law that the release is supported by valuable consideration and is binding on both Jack and Linda Boyd. Accordingly, I would reverse the entry of directed verdict for Balls Creek on this claim and remand for trial.