Philco Finance Corp. v. Mitchell

ARNOLD, Judge. Appellants contend that the trial court erred in setting aside the judgment entered 1 November 1974 and in ordering [267] a new trial. We disagree. G.S. 1A-1, Rule 59 (a) (1) provides that a new trial may be granted for “[a]ny irregularity by which any party was prevented from having a fair trial.” This section provides wide latitude for the trial judge to award new trials, and it does not require that he set out grounds to support his order. However, the able judge in this case indicated that he was granting the motion, under Rule 59, because he felt he “acted too hastily in denying plaintiff’s motion to reopen the case” and because he wanted to have all the facts before him. Appellants further contend that the court erred in denying their motion to dismiss and in allowing plaintiff to amend its complaint. Again, we disagree. Viewed in the light most fhvorable to plaintiff, the evidence showed that Philco was a third party beneficiary of the contract between the Gays and the Mitchells. See generally 4 Corbin on Contracts §§ 774-77; Restatement of Contracts §§ 133(b) and 136(1) (a). The evidence also showed that Philco granted the Mitchells three extensions of time for payment. Finally, under the transfer agreement executed by all the parties, the Mitchells promised to pay the balance due. The evidence adduced clearly was sufficient to permit recovery. See Gibbs v. Heavlin, 22 N.C. App. 482, 206 S.E. 2d 814 (1974). Although defendants objected to testimony of J. V. Morgan (concerning the Gay-Mitchell contract) and the additional testimony of two Philco employees (concerning the extension agreements), they did not do so on the ground that the pleadings did not conform to the evidence. When such an objection is not made, the pleadings are deemed amended. G.S. 1A-1, Rule 15 (b). See Mangum v. Surles, 281 N.C. 91, 187 S.E. 2d 697 (1972). Rule 15(b) provides, moreover, that “the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby. . . .” The court’s ruling on a motion to amend is not reviewable absent a showing of abuse of discretion. Service Co. v. Sales Co., 264 N.C. 79, 140 S.E. 2d 763 (1965). In the instant case, the court found that the defendants were not surprised or prejudiced in their defense by the proposed amendments. We find no abuse of the trial court’s discretion. The judgment is Affirmed. Judges Britt and Clark concur.