Volume 68 — North Carolina Court of Appeals Reports

1. Rules of Civil Procedure 15.1 — denial of motion to amend answer — no abuse of discretion In an action in which conversion of certificates of deposit was alleged, the trial court did not abuse its discretion in denying defendants' motion to amend their answer where it was apparent that the court denied the motion because it was tardily made and at that point undue prejudice could have resulted to plaintiff. 2. Banks and Banking 4 — joint account — signature card not releasing one depositor from liability to another When one spouse deposits funds into a joint account with the other, the other is designated the depositor's agent, with authority to withdraw the funds, and a depositing spouse, as principal, may bring an action in conversion against the withdrawing spouse to recover funds which that spouse has converted as agent. Therefore, defendants' motions for directed verdict and summary judgment were properly denied where plaintiff alleged that she deposited funds into a joint account with defendant-husband, and that he, without her knowledge or consent, converted the funds to his own use and refused to return them or account for them in any way. G.S. <cross_reference>41-2.1</cross_reference>(b)(1). 3. Trial 31 — peremptory instructions on right to relief and damages — improper on issue of damages In an action for conversion of certificates of deposit and restitution, the trial court correctly peremptorily instructed on the issue of conversion since all the evidence supported the right to relief; however, the trial court erred in peremptorily instructing on the precise sum converted, and thus the amount of plaintiffs damages, since the jury could have drawn more than a single inference from the evidence on the issue of damages.

1. Courts 21.5 — action for unfair trade practices — what law governs The law of South Carolina governed an action for unfair trade practices since that state had the most significant relationship to the occurrence giving rise to the action. 2. Unfair Competition 1 — unfair trade practices — South Carolina Law — insufficient evidence on motion for summary judgment In an action to recover for alleged unfair and deceptive trade practices in which the law of South Carolina applied, the evidence before the trial judge on a motion for summary judgment failed to raise an issue as to any act or practice by defendant tending to deceive plaintiff where it showed that plaintiff and defendant had a business relationship<page_number>Page 223</page_number> whereby plaintiff maintained racks with products from its various suppliers in defendant's retail stores; after defendant instituted an inventory reduction program, some managers of its stores refused to accept additional goods from plaintiff and began to return merchandise already in the stores; defendant told plaintiff that its inventory reduction program was not intended to apply to plaintiffs products; and defendant agreed to investigate and respond to plaintiffs concerns about the inventory reduction program and was prepared to do so, but plaintiff closed its business operations before defendant could work on the problem.

1. Rules of Civil Procedure 4 — misstatement of defendant's name in captions of summons — amendment to correct properly allowed The misstatement of defendant's name in the captions on the summons and complaint was a harmless misnomer and without jurisdictional significance where the record left no doubt that the plaintiffs intended to sue IFG Leasing Company, the entity that leases the equipment involved, and that that company was the one that was served. G.S. <cross_reference>1A-1</cross_reference>, Rule 4(b). 2. Arbitration and Award 2 — error to enter stay pending outcome of arbitration — allegation agreement obtained by fraud or undue influence A trial court erred in staying an action concerning a lease agreement pending the outcome of arbitration where plaintiff alleged that the<page_number>Page 660</page_number> execution of the lease agreement was obtained through fraud or undue influence and that its terms were unconscionable. If these allegations proved correct, there would be no contract to enforce by arbitration or otherwise, and G.S. 1-567.3(b) authorizes our courts to stay arbitration on a showing there is no agreement to arbitrate.