Barclays American Financial, Inc. v. Haywood

VAUGHN, Chief Judge. Defendant’s sole contention on appeal is that the trial court erred by granting Summary Judgment against her, based on the deemed admissions of her husband and co-defendant. We agree with defendant. Pursuant to Rule 36(a) of the North Carolina Rules of Civil Procedure, upon plaintiffs serving defendant with written requests for admissions, the matters contained in such requests are deemed admitted unless answered or objected to by defendant within the requisite time, i.e., thirty days. In the case, sub judice, on 26 April 1982, plaintiff served defendant, Conrad Haywood, but not defendant, Geneva Haywood, with Requests for Admissions. Plaintiffs Requests, in essence, asked defendant to admit or deny that Conrad Haywood had signed the Promissory Note to plaintiff; that Geneva Haywood had signed said Note; that the amount due plaintiff was $744.50; that no monthly payments had been made from 24 March 1981 to present; and that said Note was supposed to have been paid by 24 March 1981. Defendant Conrad Haywood’s failure to answer or object to plaintiffs Requests within the requisite time was an admission by him under G.S. 1A-1, Rule 36(a). The effect of such admission conclusively established defendant, Conrad Haywood’s liability to *389 plaintiff. G.S. 1A-1, Rule 36(b). Summary Judgment against defendant, Conrad Haywood, was proper on these facts. See Overnite Transportation v. Styer, 57 N.C. App. 146, 291 S.E. 2d 179 (1982); Shreve v. Combs, 54 N.C. App. 18, 282 S.E. 2d 568 (1981). Summary Judgment should not, however, have been granted against defendant, Geneva Haywood, since there were material issues of disputed facts regarding her liability on the Note. The only facts in evidence pertaining to her liability were contained in the pleadings and in plaintiffs Exhibit A, a copy of the said Note. Plaintiff claimed in its Complaint that defendants had executed a Promissory Note to plaintiff for valuable consideration, that defendants had defaulted on said Note, and that the entire outstanding balance due plaintiff was $744.50. Had defendant, Geneva Haywood, admitted the truth of these charges, Summary Judgment would have been proper. Defendants, however, in their Answer to the Complaint, denied all of these charges. Plaintiff made no further discovery to determine defendant, Geneva Haywood’s liability. Its Interrogatories and Requests for Admissions of Fact were served on Conrad, not Geneva Haywood. Although Conrad Haywood’s failure to answer or object in time to plaintiffs Requests for Admissions of Fact constituted admissions of fact by him, they did not bind his wife and co-defendant, Geneva Haywood. Facts admitted by one defendant are not binding on a co-defendant. Community Bank of Hayti v. Midwest Steel Erection, Inc., 24 Fed. R. Serv. 2d 428 (D.S.D. 1977); United States v. Wheeler, 161 F. Supp. 193 (W.D. Ark. 1958). Furthermore, that the co-defendants were married does not create any presumption or proof that Conrad Haywood was his wife’s agent. Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E. 2d 828 (1954); Zickgraf Hardwood Co. v. Seay, 60 N.C. App. 128, 298 S.E. 2d 208 (1982). Plaintiff presented no evidence that Conrad Haywood was authorized to act as his wife’s agent. Although only slight evidence of agency is required when the wife receives, retains and enjoys the benefits of a contract, plaintiff presented no evidence that Geneva Haywood had received any such benefits. See Norburn v. Mackie, 262 N.C. 16, 136 S.E. 2d 279 (1964); Zickgraf Hardwood Co., supra. Since there were material issues of fact regarding Geneva Haywood’s liability on the said Note, Summary Judgment as to Geneva Haywood must be and is reversed. *390 Reversed. Judges Hedrick and Becton concur.