General Metals, Inc. v. Truitt Manufacturing Co.

131 S.E.2d 360, 259 N.C. 709, 1963 N.C. LEXIS 611

• Court: Supreme Court of North Carolina
• Decided: June 14, 1963
• Docket: 613
• Status: Published

Opinion

Higgins, J.

The parties waived a jury trial and consented that the presiding judge should hear the evidence, answer the issues raised by the pleadings, and render judgment. The consent order required the trial court to sit as both judge and jury.

In passing on the appeal from the judgment, we may assume, since nothing appears to the contrary, that the careful and experienced presiding judge disregarded any incompetent evidence which may have crept into the record and based his findings exclusively on competent evidencie. Chappell v. Winslow, 258 N.C. 617, 129 S.E. 2d 101; Bizzell v. Bizzell, 247 N.C. 590, 101 S.E. 2d 668. That Judge Sink was fully aware of his responsibility in this respect is shown by his own comment during the hearing: “. . .this Court after 35 years, can skim the cream off and let the whey and clabber go to the pigs.”

Seventeen of the 20 assignments of error relate to the admissibility of evidence. Because of the plaintiff’s failure to follow the rules of appellate procedure in the assignments of error, we have found it difficult to determine what is actually involved. Products Corp. v. Chestnutt, 252 N.C. 269, 113 S.E. 2d 587; Armstrong v. Howard, 244 N.C. 598, 94 S.E. 2d 594. However, after a careful search we have discovered that all assignments except Nos. 1, 11, 14 and 18 involve bits of evidence admitted over objection. Analysis of this evidence fails to show anything in the record prejudicial to the plaintiff’s cause. However, if it should appear that material evidence 'has been offered and- excluded, the exclusion would be considered prejudicial error, for the reason that the court made decision without having given it consideration.

In one instance only do we find excluded evidence open to question. The plaintiff offered generally, as its Exhibit No. 7, a chart showing the measurements of the contraction section. This chart was received by the plaintiff as an enclosure in a letter from the defendant’s president. The court admitted it only for the purpose of illustrating the testimony of the witness. After combing through the record, however, it appears that the measurements in the chart are identical with the references to them in the letter which was admitted generally. Consequently, the admission of the chart for the limited purpose is not prejudicial for the reason that the plaintiff had the full benefit of what it contained as the result of the general admission of the letter.

The other assignments oí error based on the exclusion of testimony are likewise defective. Jenks v. Morrison, 258 N.C. 96, 127 S.E. 2d 895; Balint v. Grayson, 256 N.C. 490, 124 S.E. 2d 364; Nichols v. McFarland, 249 N.C. 125, 105 S.E. 2d 294; Strong’s Index, Vol. 1, Appeal and Error, §19, and the First Supplement to the same section, p. 30. However, overlooking the defective assignments, we have made voyages through the record without discovering that any evidence was offered and excluded which would strengthen the plaintiff’s cause.

By Assignment No. 19, the plaintiff challenges the judgment upon two grounds: (1) The evidence was insufficient to support the court’s answers to the issues. (2) Interest was improperly allowed from March 15, 1958.

The parties agreed upon the issues and that the court should answer them. The condition of the record casts some doubt whether the plaintiff, by proper exception and assignment, actually challenges the sufficiency of the evidence to support the issues. Nevertheless, we have reviewed the record in detail. It discloses ample evidence to support the issues, except as to the amount of damages. The amount of the award is within the range of the pleadings and the evidence, and presumably correct. Madison County v. Catholic Society, 213 N.C. 204, 195 S.E. 354. There was evidence the plaintiff actually directed the defendant to suspend work before the fabrication was completed. In any event this evidence would justify an award upon the basis of quantum meruit for part performance. Haymen v. Davis, 182 N.C. 563, 109 S.E. 554. All inconsistencies and contradictions in the evidence were resolved by the trier of the facts. Having been so resolved, the result is binding on this Court.

The time when interest begins to run upon a debt, the amount of which is in dispute and finally determined by judgment, has been before this Court many times. The later cases following the enactment of G.S. 24-5 seem to have established this rule: When the amount of damages in a breach of contract action is ascertained from the contract itself, or from relevant evidence, or from both, interest should be allowed from the date of the breach. Construction Co. v. Crain & Denbo, 256 N.C. 110, 123 S.E. 2d 590; Thomas v. Realty Co., 195 N.C. 591, 143 S.E. 2d 144; Perry v. Norton, 182 N.C. 585, 109 S.E. 641; Bond v. Cotton Mills, 166 N.C. 20, 81 S.E. 936. The court’s action in allowing interest from March 15, 1958, finds support in the record and the cases cited.

The judgment entered in the Superior Court of Guilford County is

Affirmed.