Mack Financial Corp. v. Harnett Transfer, Inc.
| Decision Date | 03 July 1979 |
| Docket Number | No. 7826DC857,7826DC857 |
| Citation | 256 S.E.2d 491,42 N.C.App. 116 |
| Parties | , 27 UCC Rep.Serv. 8 MACK FINANCIAL CORPORATION, v. HARNETT TRANSFER, INC. |
| Court | North Carolina Court of Appeals |
Craighill, Rendleman, Clarkson, Ingle & Blythe, by John R. Ingle, and Stephen D. Poe, Charlotte, for plaintiff appellee.
Johnson & Johnson, by W. A. Johnson, Lillington, for defendant appellant.
Defendant first contends that the trial court erred in allowing plaintiff's witness John Sumner to testify on direct, and the defendant's witness George Hodges to testify on cross-examination, about a negotiation for the purchase by defendant of two used trucks from Brockway. According to the testimony, Hodges suggested that when the financing for the purchase of the trucks was being arranged, that Sumner raise the price of each of the trucks by $2,000 and apply the extra $4,000 from the sale against the repair bill for the Kenworth truck. Defendant contends that this negotiation occurred subsequent to the events alleged by plaintiff to have created a contract between the parties for repairs to the Kenworth truck, and thus it was irrelevant and prejudicial. Defendant further contends that it should be excluded as an offer to compromise.
We think this evidence was relevant and was admissible as an admission of a party. "Anything that a party to the action has done, said or written, if relevant to the issues and not subject to some specific exclusionary statute or rule, is admissible against him as an admission." 2 Stansbury's N.C.Evidence § 167, at 4 (Brandis rev. 1973); State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973). Such a statement is admissible if "it can reasonably be interpreted as an acknowledgment of the existence of a relevant fact." Stansbury, Supra § 167, at 9-10. This testimony establishes an admission by Hodges that, at the time he made the statements, he considered himself liable for the debt involved in the present case. The discussion of the proposed method of payment assumed the existence of the debt, and was clearly relevant. Furthermore, the testimony was not excludable as an offer to compromise. The amount of the repair bill was $4,025.71; it would be unrealistic to assume that an offer to pay $4,000 was a compromise offer. This assignment of error has no merit.
Defendant next contends that the court erred in failing to grant his motions for a directed verdict and for a judgment notwithstanding the verdict. Defendant advances three arguments in support of this contention: (1) that there was insufficient evidence of a contract between Brockway and the defendant; (2) that, at most, the evidence might show a promise by defendant to pay the debt of Billy Lee, and such a promise is unenforceable under G.S. § 22-1 since it was not in writing; and (3) that, insofar as the contract related to goods sold, it was barred by G.S. § 25-2-201.
Plaintiff introduced evidence tending to show that the defendant's president, George Hodges, telephoned John Sumner at Brockway, and told him that the truck was being towed in, that his business was flourishing and "he needed the truck repaired as quickly as he could get it back on the road." After the repairs had been completed, Hodges told Sumner that he would pay for the repairs, and even instructed him as to where to send the bill. Subsequent to 21 October 1974, Hodges discussed paying for the repairs with Thomas Dunn, business manager for Brockway, approximately fifteen to twenty times. Hodges told Dunn that he was going to pay the bill as soon as he could. We think that this evidence, when viewed in the light most favorable to the plaintiff, was sufficient to show the existence of a contract between the defendant and Brockway for the repair of the truck.
With regard to the defendant's second argument, there was no evidence that Billy Lee ever entered into a contract with Brockway for the repair of his truck. The evidence discloses that Lee never had any discussions with Brockway concerning the repairs to the tractor, he never promised to pay for the repairs, and he was never billed for the repairs by Brockway. The evidence further discloses that the defendant contracted directly with Brockway for the repairs of the truck, and that no debt ever existed between Brockway and Lee for which defendant could be considered a guarantor of payment. Thus, the promise of defendant to pay for the repairs is not barred by G.S. § 22-1 as being an unwritten promise to pay the debt of another, since the evidence disclosed that the bill he promised to pay was the defendant's and not the debt of another.
We also reject defendant's argument that any contract for the parts used in the repair of the truck is rendered unenforceable by the statute of frauds provision of G.S. § 25-2-201 pertaining to the sale of goods. By its express terms, G.S. § 25-2-201 applies only to a contract for the sale of goods. In the present case, the contract was one for services rendered in the repair of a truck. The fact that various parts are also required to properly repair and service the truck is merely incidental to the repair contract, and does not bar its enforcement, either in its entirety or to the extent of the cost of the parts included.
By assignments of error numbers five and six, defendant contends that the court erred in allowing plaintiff to introduce into evidence a duplicate invoice from Brockway that had some handwritten notations on it, and that the judge's comment to the jury to examine the exhibit carefully constituted an unpermitted expression of opinion as to its weight. Defendant argues that the exhibit was inadmissible on two grounds: (1) the handwritten notations were never properly authenticated, and (2) in any event the inscriptions on the invoice were hearsay and thus incompetent.
Plaintiff's evidence tended to show that the duplicate invoice was sent to George Hodges at Harnett Transfer, and that the handwritten notations were not put on the document by anyone at Brockway. The handwritten notations on the bill are as follows:
Pd Interest on bill 7-14-75 $97.49
Ck # 9496
4025.71
Pd by ck 8934 1475.50
------------
Bal due 2550.21 To Brockway Motor Trucks
Billy Lee testified that this invoice was sent to him in a Harnett Transfer, Inc., envelope, and that the handwriting was on the invoice when he received it. Lee further testified that he was familiar with the handwriting of Mrs. Hollis, who did all of Harnett's settlement statements, that he had seen her handwriting on a number of occasions, and that in his opinion the handwriting on the invoice was hers.
In North Carolina, a witness "who has acquired knowledge and formed an opinion as to the character of a person's...
To continue reading
Request your trial
-
Marley v. Graper
...comments such as "I don't want you gentlemen to play games" to attorneys for both parties not erroneous); Financial Corp. v. Transfer, Inc., 42 N.C.App. 116, 256 S.E.2d 491 (1979) (holding the following statement by the trial court not improper in the context of entire instruction: "Ladies ......
-
Gee v. Chattahoochee Tractor Sales, Inc.
...& B Tire Co., 426 F.Supp. 1378 (W.D.Pa.1977); Arvida Corp. v. A. J. Indus., 370 S.2d 809 (Fla.1979); Mack Financial Corp. v. Harnett Transfer, 42 N.C.App. 116, 256 S.E.2d 491, 495 (1979); Swenson Trucking &c. v. Truckweld Equip. Co., 604 P.2d 1113 (Alaska 2. It was not error to refuse to ch......
-
State v. Kelly, 8429SC1021
...Hearsay is defined as (1) an out-of-court statement (2) offered for proof of the matter asserted. Financial Corp. v. Transfer, Inc., 42 N.C.App. 116, 256 S.E.2d 491 (1979). However, evidence that may otherwise be inadmissible as hearsay may nonetheless be introduced for a non-hearsay purpos......
-
Jones v. Allred, 8219SC1098
...other person not on the witness stand. Randle v. Grady, 228 N.C. 159, 163, 45 S.E.2d 35, 39 (1947); Financial Corp. v. Transfer, Inc., 42 N.C.App. 116, 122-23, 256 S.E.2d 491, 496 (1979). These statements are inadmissible because they are hearsay and fit within no recognized exception to th......