DUBOSE STEEL, INC.
v.
L.W. FAIRCLOTH and Betty Faircloth.
No. 8210SC88.
Court of Appeals of North Carolina.
December 7, 1982.*61 Kimzey, Smith & McMillan by Stephen T. Smith, Raleigh, for plaintiff-appellant.
Smith & Dickey by W. Ritchie Smith, Jr., Fayetteville, for defendant-appellee.
ARNOLD, Judge.
Plaintiff makes two arguments on appeal to hold defendant Betty Faircloth liable. It contends that she is liable because she accepted the benefits of the transaction or under a partnership theory.
Plaintiff first argues that because Betty retained some benefit from the transactions in this case that she is liable for the debts of the business. This argument is an apparent attempt to show that L.W. was an agent of the principal Betty.
We first note that a husband is not the agent of the wife solely because they are married. As in other situations, an agency must be shown to exist independent of the marital relationship. Norburn v. Mackie, 262 N.C. 16, 136 S.E.2d 279 (1964); General Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828 (1954). But because sufficient facts exist here that would enable a trier of fact to find that an agency relationship existed, we find that it was error to dismiss the case against Betty.
Although the marital relationship alone does not establish agency, only slight evidence is necessary when the wife receives and retains the benefits of the contract negotiated by the husband. Norburn, 262 N.C. 16, 136 S.E.2d 279; Passmore v. Woodard, 37 N.C.App. 535, 246 S.E.2d 795 (1978); Lawing v. Jaynes, 20 N.C.App. 528, 202 S.E.2d 334, modified 285 N.C. 418, 206 S.E.2d 162 (1974). In the case sub judice, there is evidence to show that Betty used her personal checking account for the funds of the business and that she retained some of the business money channelled through her account for her personal use. These facts are sufficient to require a reversal of the trial court's action.
Although plaintiff's arguments that the defendants were members of a partnership under G.S. 59-36(a) or that they were partners by estoppel under G.S. 59-46 are not as strong as the agency argument, the evidence could be interpreted by a trier of fact to be a partnership.
G.S. 1A-1, Rule 41(b) allows a trial judge to involuntarily dismiss the case at the close of plaintiff's evidence because plaintiff has shown no right to relief. But this motion should be used sparingly.
Except in the clearest cases the judge should probably defer judgment, since it is always possible that a plaintiff may supply a deficiency of proof by cross-examination of defendant's witnesses, or through rebuttal testimony that may be opened to him, or even occasionally by defendant's evidence-in-chief.
1 McIntosh, N.C. Practice and Procedure § 1375 (2d Ed., Phillips Supp.1970). See also, W. Shuford, N.C. Civil Practice and Procedure §§ 41-3, -7 (1981); Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E.2d 316 (1975); Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1973). Although we recognize that involuntary dismissal may be granted even though the plaintiff has made out a prima facie case that would have withstood a directed verdict motion by the defendant in a jury case, id., 282 N.C. at 619, 194 S.E.2d at 7; we reverse the judgment below and remand the case for a new trial because we find that the facts before us are not so clear as to warrant use of this device.
Reversed and remanded.
HILL and JOHNSON, JJ., concur.