Fidelity Bank v. Garner

277 S.E.2d 811, 52 N.C. App. 60, 1981 N.C. App. LEXIS 2306
CourtCourt of Appeals of North Carolina
DecidedMay 19, 1981
Docket8020SC591
StatusPublished
Cited by6 cases

This text of 277 S.E.2d 811 (Fidelity Bank v. Garner) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fidelity Bank v. Garner, 277 S.E.2d 811, 52 N.C. App. 60, 1981 N.C. App. LEXIS 2306 (N.C. Ct. App. 1981).

Opinions

MORRIS, Chief Judge.

During the course of the trial of this matter plaintiff called Ernest Whitley, Jr. as a witness. Whitley was an employee of plaintiff at the time the loan was negotiated. Whitley, representing plaintiff, entered into negotiations in January of 1975 with defendant with regard to the loan to Vermac Construction Company, hereinafter Vermac. Whitley testified as to the origin and significance of plaintiff’s Exhibit No. 13 which consisted of lists of [62]*62equipment owned by Vermac and against which plaintiff, at defendant’s request, took a lien in 1975 to secure its loan to Vermac. Defendant had given Whitley the lists and appraisals of the equipment.

Whitley also testified as to plaintiffs demand on defendant for payment of the note. Whitley identified a copy of plaintiffs letter to defendant making demand for payment. The witness also identified and testified as to the contents of a subsequent letter of notice from plaintiffs attorney to defendant which stated that the note was in default and that if payment was not made within the specified time the attorney’s fee provision of the note would be enforced.

Defendant’s objections to the admission of witness Whitley’s testimony were overruled by the court and defendant urges that this was error. Whitley was allowed to interpret and indicate the significance of the contents of the documents even though he was not the author of either. This, defendant maintains, constituted hearsay.

Defendant does not question the admissibility into evidence of either of these documents. Whitley as the officer of plaintiff, who negotiated this loan, had personal knowledge of the facts reflected in both writings. In his capacity as a bank officer these documents were issued and maintained under his direct supervision and control. Therefore, it was not error for him to identify or read from these documents before the court.

Whitley’s testimony as to defendant’s wish to have the equipment list added to the note as extra security did not relate to the contents of the list itself. Rather, it related to the negotiations between him and defendant prior to the closing of the loan. This was not hearsay.

Nor did Whitley’s explanation vary, add to, or contradict the contents of the note. Therefore, there was not a violation of the parol evidence rule. See Gas Co. v. Day, 249 N.C. 482, 106 S.E. 2d 678 (1959).

In his second assignment of error defendant asserts that the court erroneously allowed into evidence the following testimony of witness Whitley:

[63]*63Q. You mentioned in your testimony that part of this money was to be for the payment of insurance premiums. Do you know who these payments were made to?
A. I don’t know for a fact. I understood it was Mr. Garner.
Mr. Smith: I object.
Court: Overruled. Go ahead.
A. I understood it was to Mr. Garner’s agency.
Mr. Smith: Object. Move to strike.
Court: Overruled. Motion denied. Go ahead.
A. They did business with him, and I assume that’s why he wanted to help them get the loan.

Although we do think that this witness’s speculation as to the payments of these insurance preimums was hearsay, we do not think that it was sufficiently prejudicial to defendant’s case to warrant our granting a new trial. In this instance the issue before the court was whether defendant should be held jointly and severally liable on this note with the third party defendants. The uses to which the borrowed money was put by the borrowers are irrelevant to the issue of liability on the note. If a portion of the loan proceeds were used to pay insurance premiums owed defendant’s agency this would demonstrate his reason for endorsing the note but it would not influence his liability on the debt. Therefore, we find the error was not prejudicial.

Similarly, defendant maintains that the allegedly speculative testimony of third party defendant Donald Mack Blue was inadmissible hearsay. Blue’s testimony indicated that Garner knew in advance of the subordination by the plaintiff of its security interest in the equipment to that of the Bank of Montgomery. Defendant alleges that the following answer to plaintiff’s question was hearsay:

Q. But to your knowledge, he had to know in advance, didn’t he?
Mr. Smith: Objection.
Court: Overruled.
[64]*64Exception No. 10
A. It was my understanding to the Bank that Mr. Garner —that he was buying the note from the John Deere people; and he bought the note from them; and therefore he had a first lien on it. Regardless of where the lien came from when he bought that note he picked up the first lien.

We find defendant’s claim to be without merit. Exceptions to the admission of evidence will not be sustained when evidence of like import has theretofore been, or is thereafter, introduced without objection. Gaddy v. Bank, 25 N.C. App. 169, 212 S.E. 2d 561 (1975), citing, Glace v. Pilot Mountain, 265 N.C. 181, 143 S.E. 2d 78 (1965). Immediately prior to the answer under scrutiny the following exchange occurred between plaintiffs counsel and the witness without objection or exception:

Q. Now, to your knowledge, Mr. Garner knew in advance of that subordination — he knew that was being done, didn’t he?
A. I would say he did. He was writing the insurance on it.
Q. He had the insurance to the Bank of Montgomery, didn’t he?
A. It was wrote to the Bank of Montgomery, yes, sir.
Q. He had to deliver an insurance binder to the Bank prior to the loan being made, didn’t he?
A. That I don’t know.

These answers are of the same import as those to which defendant objected. Therefore, assuming arguendo, that the court erred in admitting the testimony to which objection was made, evidence of like import was admitted without objection, thereby rendering harmless any error the court might have made in admitting the evidence.

During his closing argument to the jury, plaintiff’s counsel went outside the record and made the statement, “that the defendant Garner had been previously convicted of lying to the jury.” There was evidence that on a prior occasion defendant had been convicted and later pardoned for the offense of insurance [65]*65fraud. Defendant’s motion to strike this statement was allowed, and the judge instructed the jury that the argument was improper and to disregard it. Defendant made a motion for mistrial based upon the inflammatory nature of this statement. This motion was denied. Defendant contends that the denial of his motion for mistrial was prejudicial error.

We disagree. Undoubtedly, plaintiff’s counsel should not have made such a remark. However, the record indicates that upon hearing the remark the court took the necessary steps to correct the impropriety.

When a jury is instructed to disregard improperly admitted testimony, the presumption is that it will disregard the testimony. Lacking other proof ...

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Fidelity Bank v. Garner
277 S.E.2d 811 (Court of Appeals of North Carolina, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
277 S.E.2d 811, 52 N.C. App. 60, 1981 N.C. App. LEXIS 2306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fidelity-bank-v-garner-ncctapp-1981.