37 N.C. App. 272 | N.C. Ct. App. | 1978
In his first, third, sixth, eighth, ninth, tenth, eleventh, and twelfth assignments of error the defendant raises the single question of whether the trial court erred in concluding that the indebtedness to Northwest Production Credit Association was his obligation. In substance the defendant argues that because the indebtedness to Northwest Production Credit Association was secured by a second deed of trust on the real property, it was an indebtedness “against the homeplace” which according to the consent judgment was to be paid from the proceeds of the sale.
A consent judgment is a contract between the parties thereto which is approved and sanctioned by a court of competent jurisdiction. Bland v. Bland, 21 N.C. App. 192, 203 S.E. 2d 639 (1974). The interpretation of any contract, including a consent judgment, must be guided by the perceived intent of the parties. Martin v. Martin, 26 N.C. App. 506, 216 S.E. 2d 456 (1975). The terms employed by the parties should be accorded their ordinary meanings unless a contrary intent is manifest. Insurance Co. v. Insurance Co., 266 N.C. 430, 146 S.E. 2d 410 (1966).
In the present case the parties unequivocally incorporated the terms of the deed of separation into the consent judgment except as to specified matters with which we are not concerned and “any other matters specifically spelled out in this judgment.” The deed of separation provides that the defendant shall have, among other things, the dump truck and bulldozer and “shall assume the indebtedness on any of the equipment transferred to him.” While the provision in the consent judgment charging the responsibility for “indebtednesses against the homeplace” to both parties is susceptible of more than one interpretation, we do not think it “specifically spell[s] out” an intention of the parties to modify or alter the original obligation of the defendant to pay off the in
In his second assignment of error the defendant challenges the admission of the plaintiff’s testimony with respect to the various debts of the parties. On direct examination the plaintiff referring to handwritten notes which she had prepared prior to trial answered numerous questions over the defendant’s objections. The defendant argues that when in the course of her testimony the plaintiff testified to the amounts of the various debts of the parties to Northwest Production Credit Association and Federal Land Bank, she was “necessarily testifying to the contents of the records” of those institutions in violation of the best evidence rule.
We disagree. The best evidence rule generally requires a party to produce the writing itself when its contents are directly in issue. 2 Stansbury’s N.C. Evidence, § 190 (Brandis Rev. 1973). However, “if a fact has an existence independent of the terms of any writing, the best evidence rule does not prevent proof of such fact by the oral testimony of a witness having knowledge of it or by any other acceptable method of proof not involving use of the writing.” 2 Stansbury, supra, § 191 at 103, n. 24. See also State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1975). The plaintiff’s testimony revealed transactions to which she was a party. She did not testify directly to the contents of the creditors’ records. Her testimony regarding the status of their financial obligations was as acceptable in a legal sense as the records of her creditors. See Overby v. Overby, 272 N.C. 636, 158 S.E. 2d 799 (1968). Furthermore, the use of notes which had been prepared by her prior to trial was properly allowed to refresh her recollection. 1 Stansbury, supra, § 32. Thus, this assignment is overruled.
The defendant’s fourth and fifth assignments of error involve a letter from the Vice President of Northwest Production Credit Association to the plaintiff. The letter which was used by the defendant on direct examination listed “the balances due on each loan as of June 16, 1975.” The defendant contends that testimony of the defendant elicited by the plaintiff on cross-examination was
North Carolina case law as well as basic principles of fairness dictates that a party should be allowed to cross-examine his opponent with respect to the contents of a writing upon which he relied on direct examination. Warren v. Trucking Co., 259 N.C. 441, 130 S.E. 2d 885 (1963). Furthermore, we find nothing in the record to support the defendant’s contention that the paper writing admitted into evidence was a copy of the subject letter. However, assuming that this contention is correct, it is settled that a copy of a writing is admissible in evidence without authentication when the opposing party admits to its authenticity. 2 Stansbury, supra, § 192 at 112. The defendant thus rendered authentication unnecessary when he relied on the copy of the letter during direct examination and testified that the paper to which he had referred was a letter from Northwest Production Credit Association. These assignments are totally without merit.
The defendant’s remaining assignment challenges the entry of judgment for the plaintiff in the amount of $2,796.50. In light of our disposition of the defendant’s foregoing assignments it is clear that there was ample evidence to support the trial court’s findings as to the amount of the defendant’s obligation to the plaintiff. The judgment appealed from is affirmed.
Affirmed.
