Hodge v. First Atlantic Corp.

BRITT, Judge. Plaintiffs assign as error the failure of the trial court to grant their motion for a directed verdict on all issues. The burden of proof on each of the issues was on plaintiffs. A directed verdict in favor of the party upon whom rests the burden of proof is proper when there is no conflict in the evidence and all the evidence tends to support his right to relief, or when all material facts are admitted by the adverse party. Chisholm v. Hall, 255 N.C. 374, 121 S.E. 2d 726 (1961), Smith v. Burleson, 9 N.C. App. 611, 177 S.E. 2d 451 (1970). In the instant case, on no issue did all the evidence tend to support plaintiffs' right to relief, nor did defendant admit the facts as contended by plaintiffs. The assignment of error is overruled. Plaintiffs assign as error the trial court’s allowance of defendant’s motion for judgment n.o.v. It will be noted that the jury answered the first and second issues in favor of plaintiffs and the third issue in favor of defendant, therefore, we will discuss each of the issues. We think the evidence was sufficient to support the verdict on the first issue. Among other things the evidence tended to show that plaintiffs believed that Goodyear was the lender of the construction money; plaintiffs dealt only with Goodyear, the promissory notes named Goodyear as payee and the construction loan agreement referred to Goodyear as the lender. While the jury verdict on the first issue is fully supported by the evidence, in order for plaintiffs to recover it is necessary that they prevail on at least one of the other issues. As to the second issue, we think the defendant’s motion for directed verdict should have been allowed. Upon the trial of an action to recover for usury, the burden of proof is on the plaintiff throughout the trial to establish his cause of action. Speas v. Bank, 188 N.C. 524, 125 S.E. 398 (1924). The elements of usury are: (1) A loan or forbearance of money; (2) an understanding that the money loaned shall be returned; (3) payment or an agreement to pay a greater rate of interest than [637] that allowed by law; and (4) a corrupt intent to take more than the legal rate for the use of the money loaned. Henderson v. Finance Company, 273 N.C. 253, 160 S.E. 2d 39 (1968), and cases therein cited. In the instant case, plaintiffs failed to show that defendant did not in fact render services for the one percent “service charge” or “construction loan fee.” As to the third issue, it is not necessary for us to determine if the trial court was warranted in submitting it to the jury. Suffice to say, the answer to the third issue in defendant’s1 favor was fully supported by the evidence. Inasmuch as plaintiffs failed to make out their case on the second issue, and the jury on sufficient evidence answered the third issue against plaintiffs, we hold that judgment n.o.v. in defendant’s favor was proper and the assignment of error relating thereto is overruled. Plaintiffs assign as error the ruling by the trial court that a portion of plaintiffs’ claim was barred by the two-year Statute of Limitations, G.S. 1-53(2). Due to our holding that the judgment n.o.v. in defendant’s favor was proper, we deem it unnecessary to discuss this assignment of error as we perceive no prejudice to plaintiffs. We have carefully considered the other assignments of error brought forward and argued in the briefs but finding each of them without merit, they are all overruled. For the reasons stated, the judgment appealed from is Affirmed. Judges Campbell and Hedrick concur.