On plaintiff's petition for discretionary review of the decision of the Court of Appeals,
Plaintiff filed a complaint seeking to recover for labor and parts furnished in repairing defendant's vehicles. The complaint alleged that the work was done pursuant to an express contract and on an "open account" basis. Plaintiff alleged that under the terms of the open account agreement defendant agreed to pay plaintiff the invoice price for the labor and materials furnished. Plaintiff further alleged that it had furnished labor and materials in the amount of $4,141.84 and had billed defendant for that amount and that defendant refused to pay. Plaintiff prayed that it recover the sum of $4,141.84 plus interest and costs.
Defendant answered, denying the material allegations of the complaint and alleging that the repair work for which plaintiff had not been paid was improperly done. He also moved in his answer to dismiss plaintiff's complaint on the ground that he was an employee of John C. Brooks, Inc., and at all times functioned as an employee of the corporation and not in his individual capacity. Defendant further alleged that the repairs in question were performed on trucks owned by the corporation and that he, defendant, is not a proper party to this action.
Both parties moved for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, and each presented affidavits and exhibits.
Defendant submitted an affidavit from his attorney who averred that defendant incorporated his business on or about 7 September 1976 and that the necessary papers attesting to the incorporation were filed as provided by law. He further averred that he and defendant proceeded to notify all persons doing business with defendant that the business formerly conducted as a sole proprietorship was now a corporation; that titles to motor vehicles were changed to reflect the corporate name; that a letter was sent to International Harvester Credit Corporation requesting information concerning the transfer of titles to the vehicles to the corporate name; that a reply letter was received by the attorney indicating that the transfers were being made and that a copy of the letter was being sent to an employee of plaintiff; and that numerous assets had been transferred to the corporation.
Defendant submitted exhibits indicating that the transfer of titles was made and that he subsequently had signs painted on the trucks indicating the corporate name. Defendant further averred that, since the incorporation, numerous business dealings were conducted with plaintiff for repairs of defendant's vehicles. The repair bills were paid with checks drawn on the account of John C. Brooks, Inc., and signed by John C. Brooks subsequent to the time of incorporation. The checks were submitted as exhibits. One of them was allegedly completed in the handwriting of the plaintiff's president. Defendant further averred that he at no time indicated to plaintiff's president or any agent, employee or director of plaintiff that he was anything but an employee and agent of the corporation.
In an affidavit, plaintiff's president averred that he had several discussions with defendant concerning the subject matter of this litigation, that defendant had agreed to pay the amount set forth in the complaint and that defendant at no time during the discussions had contended that he did not personally owe the bill. After these discussions, defendant wrote two letters in reply to inquiries from plaintiff's president in an individual capacity. The letters were written on plain white paper and were signed "John C. Brooks." In the letters, defendant raised no question as to proper notification of the bill nor did he indicate that the bill should have been made out to a corporation. One of the letters acknowledged that defendant had been receiving the bills and contained the statement that he was expecting plaintiff to remit to him any remaining amount arising from the sale of a truck. Plaintiff's chief bookkeeper averred that he had examined the account of the defendant with plaintiff and that at no time had defendant advised the plaintiff by letter or otherwise that the trucks involved in the lawsuit had been conveyed to a corporation. He further averred that all business transacted with or for the defendant was transacted in the same manner as all prior business.
Based on the pleadings, affidavits and exhibits, Judge Harrell directed entry of summary judgment for defendant on the ground that "there is no genuine issue as to any material facts."
Plaintiff appealed to the Court of Appeals and that court, in a unanimous decision, affirmed the trial court. We granted plaintiff's petition ...