William D. GOODRICH and wife, Brenda Goodrich and Shirley R. Morter
v.
Warren RICE and Rice Excavating, Inc.
No. 8415DC1059.
Court of Appeals of North Carolina.
July 2, 1985.*197 Winston, Blue & Rooks by J. William Blue, Jr., Chapel Hill, for plaintiffs-appellees.
Levine, Stewart & Tolton by Michael D. Levine, Chapel Hill, for defendants-appellants.
MARTIN, Judge.
Defendant's assignments of error relate to the granting of plaintiffs' motion to amend the complaint, sufficiency of the evidence to support the findings, the denial of his motion for directed verdict, and the award of damages, including treble damages and attorneys' fees. We reverse the award of treble damages and attorneys' fees as being unsupported by the evidence and remand the cause for entry of judgment entitling the real party in interest to receive the fruits of the litigation.
Defendant, in his first two assignments of error, contends the trial court erred in granting plaintiffs' motion to amend the complaint. Defendant asserts that the amended complaint contained new substantive allegations from those originally contained in the complaint, and, therefore, the granting of plaintiffs' motion prejudiced him by forcing him to defend against allegations for which he was not prepared.
We find no merit in these assignments. It is a fundamental concept of Rules 15(a) and (b) of the North Carolina Rules of Civil Procedure that amendments to pleadings should be liberally allowed. Discretion in allowing amendment of pleadings is vested in the trial judge and his ruling will not be disturbed on appeal absent a showing of prejudice to the opposing party. See Auman v. Easter, 36 N.C.App. 551, 244 S.E.2d 728, disc. rev. denied, 295 N.C. 548, 248 S.E.2d 725 (1978). Defendant has failed to demonstrate prejudice from the amended pleading. The amendments added an additional plaintiff, Shirley Morter, and inserted additional language that defendant was conducting business individually under the name of "Rice Excavating, Inc." Neither of the amendments brought out any new material, changed the theory of the case, or in any way could have surprised defendant. Defendant in his own testimony acknowledged that plaintiffs had disclosed to him that the property belonged to Shirley Morter and the pond was being constructed for her; that no corporation existed in Orange County under the name of "Rice Excavating, Inc."; and that "Rice Excavating was the name that was given to... [defendant] ... to do business under." Defendant was named as an individual defendant. Defendant showed no prejudice as a result of the amendments allowed.
Defendant, in his next two assignments of error, contends the trial court erred in finding and basing its award of *198 damages on a breach of contract for a two acre pond. Defendant asserts that the ultimate agreement between the parties was for the construction of a 1.2 acre pond. We find the evidence sufficient to support the trial court's findings. Plaintiff William Goodrich testified that he met defendant at the pond site, that they discussed the construction of a two acre pond, and that defendant assured him a two acre pond would be built. Plaintiff Brenda Goodrich testified that defendant spoke with her after his examination of the pond site and told her the pond would be two acres in size with a depth of fifteen feet, and that the price would include the dam, shorelines, banks and overflow pipe. Defendant testified that he recalled a telephone conversation with plaintiff Brenda Goodrich during which he told her he would construct a two acre pond and advised her of various technical aspects concerning the construction of the pond. While there was evidence of a later agreement for a 1.2 acre pond in lieu of a two acre pond, the evidence was void of any consideration to support a modification of the original agreement. Findings of fact made by the trial court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support them, even though evidence might have supported findings to the contrary. Henderson County v. Osteen, 297 N.C. 113, 254 S.E.2d 160 (1979).
Defendant next assigns error to the denial of his motion for a directed verdict under Rule 50(a) of the North Carolina Rules of Civil Procedure. A Rule 50(a) motion for directed verdict is appropriate only to a case tried before a jury. In non-jury trials, a motion for involuntary dismissal under Rule 41(b) provides a procedure whereby, at the close of plaintiff's evidence, the judge can give judgment against the plaintiff, not only because his proof has failed to make out a case, but also on the basis of facts as the judge may determine them. O'Grady v. Bank, 296 N.C. 212, 250 S.E.2d 587 (1978). Treating defendant's motion as one made under Rule 41(b), we find that it was properly denied. The evidence sufficiently supported the determination by the trial court that the contractual agreement between the parties required the construction of a two acre pond and that such agreement had been breached. This assignment of error is overruled.
Defendant next contends the trial court erred in its finding that his conduct constituted a violation of G.S. 75-1.1 and in awarding attorneys' fees under G.S. 75-16.1. The trial court determined "[t]hat the acts of the Defendant Rice in obtaining the $2,000 payment from the Plaintiffs in July of 1983 were a violation of N.C.Gen.Stat. § 75-1.1 et seq.," and, therefore, as part of the award of damages, the trial court trebled $2,000.00 and ordered "[t]hat as a part of the cost to be taxed to the Judgment in this action, the Defendant shall be taxed with reasonable attorneys fees payable to counsel of the Plaintiffs...."
The existence of unfair acts and practices under G.S. 75-1.1 must be determined from the circumstances of each case. Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975). Under the circumstances of this case, the parties agreed that defendant would receive no funds until the job was complete, unless defendant experienced cash flow problems, in which case he would ask for an advance for work already performed. Plaintiffs produced evidence that after excavating the pond site defendant advised them that he needed $2,000.00 to complete repairs on equipment and that as soon as the repairs were complete he would resume construction on the pond. Based upon these representations, plaintiffs advanced to defendant the sum of $2,000.00. Defendant testified that the payment was for work already performed on the project. No additional work was performed at the job site after the payment was received.
We hold that G.S. 75-1.1 is inapplicable to the facts of the case before us. We cannot say that the evidence of defendant's receipt of the payment violates the parties' agreement, or that its receipt offends "established public policy," or constitutes *199 a practice which is "immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." Johnson v. Insurance Co., 300 N.C. 247, 263, 266 S.E.2d 610, 621 (1980). The trial court found that defendant "believed that he was entitled to the $2,000.00 in return for services that he had already performed." The record is devoid of evidence to the contrary, and the trial court erred in awarding treble damages and attorneys' fees to plaintiffs.
Defendant next assigns error to the trial court's exclusion of evidence concerning expenses incurred on the project and the monetary value of the services he had performed. Defendant contends he is entitled to recover for the reasonable value of his performance under quantum meruit. This assignment of error is without merit. In contract actions there must be a conformity between the pleadings and proof. In the case under review, an action brought on an express contract, defendant failed to file an answer and therefore cannot recover on a theory of quantum meruit. See generally 17A C.J.S. Contracts §§ 568-69.
Defendant finally contends the trial court erred in awarding the entire amount of damages to plaintiffs William and Brenda Goodrich. Defendant argues that since the record indicates that these plaintiffs were acting as agents for plaintiff Morter, the judgment in their favor is defective. We agree.
Every claim must be prosecuted in the name of the real party in interest. G.S. 1A-1, Rule 17(a). "A real party in interest is a party who is benefited or injured by the judgment in the case." Parnell v. Insurance Co., 263 N.C. 445, 448, 139 S.E.2d 723, 726 (1964), quoting Rental Co. v. Justice, 211 N.C. 54, 55, 188 S.E. 609, 610 (1936). The mere appointment of an agent does not make him the real party in interest. Morton v. Thornton, 259 N.C. 697, 131 S.E.2d 378 (1963). "[I]t has been consistently held that an agent for another could not maintain an action in his name for the benefit of his principal." Howard v. Boyce, 266 N.C. 572, 577, 146 S.E.2d 828, 831 (1966).
The evidence clearly establishes an agency relationship as it discloses the plaintiffs William and Brenda Goodrich were negotiating the pond's construction on behalf of plaintiff Shirley Morter. Plaintiff Goodrich testified, "As for the $2,000 we loaned Mr. Rice, that was my sister-in-law's [plaintiff Morter's] money. I had no money involved in this matter...." The court correctly found "[t]hat the Plaintiff Shirley Morter is the owner of certain real property... and that the Plaintiffs Goodrich, on behalf of the Plaintiff Morter, contracted with the Defendant Rice for the construction of a pond on the land owned by the Plaintiff Morter." The real party in interest in the case sub judice is plaintiff Shirley Morter. Therefore, she is the one who is entitled to receive the fruits of the litigation. See Hood v. Mitchell, 206 N.C. 156, 173 S.E. 61 (1934); see also Raintree Corp. v. Rowe, 38 N.C.App. 664, 248 S.E.2d 904 (1978).
In conclusion, we hold that the trial court erred in trebling damages under G.S. 75-1.1, in awarding attorneys' fees to plaintiffs, and in awarding damages to parties other than the real party in interest. Those portions of the judgment are therefore vacated. Otherwise, the judgment in favor of Shirley Morter is affirmed and the cause is remanded for entry of judgment in favor of Shirley Morter in the amount of $6,925.00.
Affirmed in part; vacated in part.
ARNOLD and PARKER, JJ., concur.