Bond Park Truck Service, Inc. v. Hill , 53 N.C. App. 443 ( 1981 )

MARTIN (Robert M.), Judge.

Defendant contends that the court erred by admitting plaintiffs Exhibit One into evidence. Plaintiff’s Exhibit Number One, which consisted of itemized statements of account for materials supplied and labor performed by plaintiff upon defendant’s truck, was not verified. Therefore it was not admissible pursuant to N.C. Gen. Stat. § 8-45 which reads, in pertinent part, as follows:

In any actions instituted in any court of this State upon an account for goods sold and delivered, . . . for services rendered, or labor performed, ... a verified itemized statement of such account shall be received in evidence, and shall be deemed prima facie evidence of its correctness.

We must determine whether plaintiffs Exhibit Number One was admissible under the business records exception to the hearsay rule. In Supply Co. v. Ice Cream Co., 232 N.C. 684, 685-686, 61 S.E. 2d 895, 896-897 (1950), the Supreme Court said:

The rule of evidence formerly observed by the courts limiting proof of items of business transactions to matters within the personal knowledge of a witness, has undergone revision in the light of modern business conditions and methods. (Citations omitted.) The impossibility of producing in court all the persons who observed, reported and recorded each individual transaction gave rise to the modification which permits the introduction of recorded entries, made in the regular course of business, at or near the time of the transaction involved, and authenticated by a witness who is familiar with them and the method under which they are made. This rule applies to original entries made in books of account in regular course by those engaged in business, when properly identified, though the witness may not have made the entries and may have had no personal knowledge of the transactions. (Citations omitted.)

In 1 Stansbury’s N.C. Evidence § 155 (Brandis rev. 1973), after reviewing the business entries rule in this State and its liberalization due to changing business conditions, the author on pages 522 and 523 says:

It would be futile to attempt to produce all of the persons who observed, reported and recorded a particular transaction, and even if they were produced they could seldom testify to anything except their habit of reporting correctly — a fact which may well be taken for granted without proof. This habit, strengthened by the discipline which develops within a business group, furnishes a sufficient guaranty of trustworthiness to justify the admission of regular business entries when properly identified and explained.

... If the entries were made in the regular course of business, at or near the time of the transaction involved, and are authenticated by a witness who is familiar with them and the system under which they were made, they are admissible.

Plaintiff’s Exhibit Number One was prepared by Mr. Grimes, a co-owner of plaintiff corporation. It was identified by Mr. Bailey, the shop foreman, who was familiar with it in that he had personally performed the work and had made the original entries on the “dummy orders,” work orders used in the shop, from which the exhibit was made. He testified on cross-examination in reference to the exhibit “this copy was made from my copy I have in my shop. This reflects what we did and the dates we did it on.” On direct examination Mr. Bailey testified that Exhibit Number One properly reflected the work done and the charges made pursuant to the work he performed.

He further testified “[w]e got the tractor on Thursday morning and the tractor left on Tuesday morning; the following Tuesday evening. Everything on these bills reflects the work and the parts we repaired.”

A careful review of the testimony discloses that the entries were made in the regular course of business. Mr. Bailey, the witness who authenticated the bills, was familiar with them and the system under which they were made. The only possible question with regard to their admissibility was whether they were made at or near the time of the transaction involved. The evidence discloses that the work was performed between 7 March and 12 March. The “dummy” orders were prepared by Mr. Bailey during this period of time. The bills admitted into evidence were dated 7, 12, 20 and 23 March and 16 April. In our opinion, the exhibit meets the requirement of being made at or near the time of the transaction involved.

Plaintiff argues that even if admission of the exhibit into evidence was error, the error was harmless for the reason that the defendant at no time questioned the charges made for the services rendered or parts supplied. We note, however, that in his answer defendant denied plaintiffs allegation that the amounts stated in the bills accurately reflected the cost of services and materials supplied, although he did not contest the charges in his testimony at trial. Plaintiff had the burden of proving at trial the value of the materials and services rendered in order to recover those amounts in the action. If admission of the exhibit was error, it was not rendered harmless for the reason argued by plaintiff.

Any possible error in admission of the evidence in question was rendered harmless, however, by the fact that Mr. Bailey testified that $3,620.12 was the amount of the labor and material supplied by plaintiff in repairing defendant’s truck. Defendant’s first assignment of error is therefore overruled.

By his second and third assignments of error, defendant contends the court erred by denying his motions for directed verdict at the close of plaintiffs evidence and at the close of all the evidence because there was a material variance between plaintiffs allegations and plaintiffs evidence. Plaintiff alleged in its complaint that it was a duly organized South Carolina corporation which defendant denied. Defendant argues there was no evidence, documentary or testamentary, offered at trial that plaintiff was in fact a corporation.

With regard to the defendant’s second assignment of error, we note that defendant waived the right to complain on appeal about the denial of his motion for directed verdict at the close of plaintiffs evidence by offering evidence at trial. Overman v. Products Co., 30 N.C. App. 516, 227 S.E. 2d 159 (1976); Woodard v. Marshall, 14 N.C. App. 67, 187 S.E. 2d 430 (1972). Defendant’s second assignment of error is therefore overruled.

With regard to defendant’s third assignment of error, we find no error in the trial court’s denial of defendant’s motion for directed verdict, made at the close of all the evidence. The general denial entered by defendant against plaintiffs allegations fails to place plaintiffs legal existence in issue. Rule 9(a) of the North Carolina Rules of Civil Procedure requires a defendant to specifically plead lack of capacity to sue. Furthermore, the headings on the bills submitted to defendant and the testimony of plaintiffs employees were evidence of plaintiffs corporate status. Defendant’s action in filing a counterclaim against “Bond Park Truck Service, Inc.” and in presenting into evidence a check made payable to “Bond Park Truck Service, Inc.” are admissions of plaintiffs corporate existence. Thus, we must also overrule defendant’s fourth assignment of error which was directed to the trial court’s statement in its instructions to the jury that “plaintiff has offered evidence tending to show that Bond Park Truck Service, Inc. is a corporation.”

Defendant abandoned his fifth assignment of error in his appellate brief.

By his sixth and final assignment of error, defendant contends the trial court erred in its instruction on the measure of damages in plaintiff’s action by failing to instruct on the theories of quantum meruit or part performance. Neither the pleadings

nor the evidence raised the issues of whether plaintiff was entitled to recover on theories of quantum meruit or part performance. We find that the trial court correctly instructed the jury on the measure of damages, see Financial Corp. v. Transfer, Inc., 42 N.C. App. 116, 256 S.E. 2d 491 (1979), and we therefore overrule defendant’s sixth assignment of error.

On cross-appeal, plaintiff contends that the court erred by denying its motion for directed verdict on defendant’s counterclaim at the close of defendant’s evidence and by denying its motion for judgment notwithstanding the verdict on the issues related to defendant’s counterclaim. Plaintiff argues that the court improperly submitted the third issue, which was related to defendant’s counterclaim, because the issue was framed in the law of contract, whereas defendant’s counterclaim alleged negligence rather than breach of contract or warranty. Defendant’s counterclaim alleged negligence and breach of a contract to repair and evidence was presented that plaintiff failed to perform repairs as agreed, which constituted a breach of contract. This assignment of error is overruled.

In the trial, we find no prejudicial error.

No error in defendant’s appeal.

No error in plaintiff’s cross-appeal.

Judges Clark and Hill concur.