Andrews v. Builders & Finance, Inc.

23 N.C. App. 608 | N.C. Ct. App. | 1974

PARKER, Judge.

Over defendant’s general objections, plaintiff was permitted to testify during his examination in chief to statements he had made to the lending officer of the Savings and Loan Association when he applied for the $28,000.00 loan, proceeds of which were used in purchasing the house and lot from defendant, concerning the contract price for the property. Plaintiff testified that he made these statements some forty-five to sixty days prior to closing the loan and that he had told the lending officer that he was paying $35,500.00 for the property. Also over defendant’s general objection, plaintiff was permitted to introduce a copy of the loan application which he testified he had filled out and which showed the contract price for the house and lot. Defendant now contends the admission of this testimony was error in that it “constituted self-serving declarations and was prejudicial to the defendant.”

That a prior out-of-court statement of a witness may have been “self-serving” does not describe an independent ground of objection. “If the statement is hearsay, and is not admissible under some specific rule, it is subject to exclusion regardless of whether it is self-serving, neutral, or self-disserving.” 1 Stansbury’s N. C. Evidence, § 140, p. 466 (Brandis Revision, 1973). Here, the prior statements which the witness testified he had made to the lending officer were hearsay in the sense that at the time the statements were made the witness was not under oath or then subject to cross-examination, though at the time he testified concerning them both of these conditions. prevailed. However, “ [w] hether former assertions of the witness himself, related by him in his testimony, are hearsay is of; no particular consequence in North Carolina, in view of their free admissibility for purposes of corroboration.” 1 Stansbury’s N. C.. Evidence, § 138, p. 459, n. 2 (Brandis Revision, 1973)..

In the present case the evidence concerning plaintiff’s statements to the lending officer as to the price he had agreed to pay defendant for the property clearly had no relevance to prove that defendant also agreed to that price, and the evidence would have been incompetent if offered for that purpose. It was, nevertheless, admissible for the purpose of corroborating-plaintiff’s testimony concerning his own understanding of the agreed contract price, and for that limited purpose of strengthening his credibility “ [t] he witness himself may testify to the making of the statements, and he may do this even in the course of his examination in chief if his relationship to the case is such as to justify an inference of bias or otherwise reflect upon his credibility.” 1 Stansbury’s N. C. Evidence, § 51, p. 148 (Brandis Revision, 1978). Since the evidence was admissible, though for a limited purpose, defendant’s general objections were properly overruled.

On cross-examination plaintiff testified that shortly before the trial he had sold the house which he had purchased from defendant. When defendant’s counsel asked plaintiff how much he had sold the house for, the court sustained objection interposed by plaintiff’s counsel. Defendant now assigns this ruling as error, contending that his counsel’s cross-examination, of plaintiff was thereby unduly limited. We find this assignment without merit, first, because the price for which plaintiff sold the house almost two years after he purchased it from defendant had no relevance to prove any fact at issue in this litigation, and, second, because what the witness’s answer would have been, had he been required to answer, does not appear in the record. It is well established that the sustaining of an objection to a question directed to a witness, whether on direct or cross-examination, will not be held prejudicial when the record does not. show what the answer would have been had the objection not been sustained. State v. Felton, 283 N.C. 368, 196 S.E. 2d 239 (1973) ; State v. Poolos, 241 N.C. 382, 85 S.E. 2d 342 (1955),

Defendant excepted to the court’s finding of fact No. 3 in which the court found as a fact that on 10 September 1971, when defendant executed deed to the plaintiff, “the plaintiff and defendant agreed that the final purchase price for the house ánd. property was $35,570.00.” Although the evidence on this point was in sharp conflict, the court’s finding of fact is supported by competent evidence in the record. Therefore, the trial court’s findings of fact are conclusive upon this appeal. 1 Strong, N. C. Index 2d, Appeal and Error, § 57, p. 223. Accordingly, defendant’s assignment of error based on its exception to finding of fact No. 3 is overruled. Defendant made no exception to any other finding of fact made by the trial judge.

Defendant duly excepted and now assigns error to the court’s first conclusion of law, in which the court concluded “[t]hat the acceptance by the defendant of the $28,000.00 plus the note for $7,570.00 on September 10, 1971 as the final purchase' price was an accord and satisfaction of the purchase described hereinabove.” In support of this assignment defendant points out that plaintiff did not affirmatively plead an accord and satisfaction, as is required by G.S. 1A-1, Rule 8(c). Additionally, defendant contends that the requisites for an accord and satisfaction have not been shown in the present case in that the parties, having agreed on a price computed as defendant’s cost plus 5 % and defendant’s evidence showing that .this produced a figure of $44,862.17, the payments totaling $35,570.00 made at the time of closing the sale were but a partial payment on an undisputed claim and hence did not constitute a binding accord and satisfaction because not supported by consideration. We point, out, however, that although defendant’s evidence did show a cost plus 5% figure of $44,862.17, plaintiff’s-evidence would support a contrary finding. Plaintiff testified that in preparation for closing the purchase of the property he approached Mr. Lee, the President of defendant corporation, and “asked him what was the final price and he said $35,500.00.” There was also uncontradicted evidence that defendant closed the sale and delivered deed conveying the property to plaintiff upon receipt by defendant of payments, consisting of cash and a second mortgage purchase money note, totaling $35,570.00. The note bore the notation on its face that it was “given for balance of purchase price.” Thus, this was not a case, as defendant contends, of an undisputed claim based on a contract under which both parties clearly agreed that the purchase price was to be $44,862.17. There was at least evidence from which the court could find, as it did find, that the parties “agreed that the final purchase price for the house and property was $35,570.00.” This finding of fact was in itself sufficient to support the judgment, and the court’s reference in its conclusions of law to an “accord and satisfaction” may be treated as sur-plusage. It may be that the trial court, in referring to an “accord and satisfaction” in its conclusions of law, was thinking in terms of the defendant seller accepting a second mortgage note for a portion of the purchase price rather than requiring that the entire purchase price be paid by cash. If so, any question as to whether such a conclusion was, or was not, correct is now moot, since we note that all of the evidence shows that the $7,570.00 purchase money note was paid in full prior to the trial of this case.

The court’s findings of fact being supported by competent evidence and those findings in turn supporting the judgment rendered, the judgment appealed from is

Affirmed.

Chief Judge Brock and Judge Baley concur.