Santora, McKay & Ranieri v. Franklin , 79 N.C. App. 585 ( 1986 )

339 S.E.2d 799 (1986)

SANTORA, McKAY & RANIERI
v.
Eugene FRANKLIN, and wife, Sophia Franklin.

No. 8528SC559.

Court of Appeals of North Carolina.

March 4, 1986.

Shuford, Best, Rowe, Brondyke & Orr by Robert F. Orr, Asheville, for plaintiff-appellee.

Baley, Baley, Clontz & Schumacher, P.A. by Stanford K. Clontz, Asheville, for defendants-appellants.

JOHNSON, Judge.

In defendants' first Assignment of Error, defendants contend the court committed reversible error by admitting testimony regarding the content of a telephone conversation allegedly placed by defendant Sophia Franklin to witness Robert McKay, an attorney with plaintiff law firm. We agree with defendants that when there is no other evidence to authenticate the identity of the speaker who placed the call except that he states his name, the evidence is inadmissible as hearsay. Everette v. Lumber Co., 250 N.C. 688, 110 S.E.2d 288 (1959). However, it is not necessary that proof of the identification be made before the introduction of the evidence of the conversation. Id. Identity of the caller may be established by direct or circumstantial evidence, id., anytime throughout the development of the case, State v. Strickland, 229 N.C. 201, 208, 49 S.E.2d 469, 474 (1948). Identification of the caller can also be established by evidence that the caller disclosed knowledge of facts known peculiarly to him. Rule 901 commentary Example (4), N.C. Rules Evid.; 1 H. Brandis On N.C. Evidence, sec. 96 (Supp.1983). The evidence is of course greatly strengthened when a combination of circumstances can be shown. 1 H. Brandis, supra, at sec. 96 (rev. 2d ed. 1982).

Applying these principles to the case at bar, there is ample circumstantial evidence throughout the development of the case to identify defendant Sophia Franklin as the caller in question. Information was conveyed by the caller regarding the lawsuit pending in New York which disclosed knowledge of facts known peculiarly to defendant Sophia Franklin and thereafter used by Robert McKay to frame the motion to vacate the judgment entered in New York. This circumstantial evidence regarding defendant Sophia Franklin's identity is strengthened by the uncontradicted testimony that at least one, and possibly two, other telephone conversations took place between the witness and the same person identified on the telephone as Sophia Franklin regarding the same New York lawsuit. Further, one of these calls was placed by witness McKay to defendant Sophia Franklin at one of three phone numbers given to Robert McKay by Robert Long, the North Carolina attorney who referred defendants to the New York law firm. Admitted into evidence with no objections was a correspondence that took place between the witness Robert McKay and defendant Sophia Franklin, which made reference to previous telephone conversations between the two. This Assignment of Error is overruled.

Defendants next contend the court committed reversible error by admitting into evidence witness Robert McKay's testimony regarding the subject matter of the New York lawsuit. Specifically, defendants except to the following testimony as irrelevant:

Q Could you explain the situation in regard to the lawsuit against Mr. and Mrs. Franklin about which you were contacted?

A Yes. Mr. and Mrs. Franklin had signed what is called an equipment lease—

MR. CLONTZ: Objection. I don't think that's relevant to anything that's alleged in this Complaint.

COURT: Overruled; go ahead.

A —pursuant to which they were going to lease two Peterbilt tractors which they wanted to use for the purpose of hauling coal in their business, and the lease required them to make—

MR. CLONTZ: Objection, your Honor.

COURT: Overruled.

A —required them to make monthly payments to this company in New York that had financed the purchase or the transaction.

Defendants objected for the first time on appeal in appellants' brief on the grounds of hearsay. A specific objection, if overruled, will be effective only to the extent of the ground specified. State v. Jones, 293 N.C. 413, 238 S.E.2d 482 (1977). Hence, on review we need inquire only as to whether the testimony admitted against objection was inadmissible on the grounds of relevancy.

A strong showing must be made to reverse if the only ground asserted is irrelevance. Broyhill v. Coppage, ___ N.C. App. ___, 339 S.E.2d 32 (1986). See Rule 401, N.C. Rules Evid. Evidence which is essentially background in nature is universally offered and admitted as an aid to understanding. Rule 401 commentary, N.C. Rules Evid. The challenged testimony addressed the substance of the New York lawsuit from which this action for attorneys' fees arose and, as such, provided needed background information pertaining to the dispute at issue. Moreover, the testimony was not prejudicial. This Assignment of Error is overruled.

Next defendants challenge the jury instructions tendered by the court to the jury on the issue of an account stated. Defendants contend that there was insufficient evidence to support an instruction on an account stated because neither the statements nor the computer printouts constitute a verified itemized statement of an account as required by G.S. 8-45. We have reviewed the jury charge in its entirety. The jury received instructions regarding two separate legal theories of an account stated, to wit: an account stated by an implied agreement and an account stated pursuant to G.S. 8-45.

"An account stated is a contract based on an agreement between two parties that an account rendered by one of them to the other is correct." Greene v. Murdock, 53 N.C.App. 552, 559, 281 S.E.2d 443, 448 (1981). "The agreement may be either an express agreement or it may be an agreement implied by failure to object within a reasonable time after the other party has calculated the balance and submitted a statement of the account." Mazda Motors of America, Inc. v. Southwestern Motors, Inc., 36 N.C.App. 1, 18, 243 S.E.2d 793, 804, disc. rev allowed, 295 N.C. 466, 246 S.E.2d 9 (1978), aff'd in part, rev'd in part, 296 N.C. 357, 250 S.E.2d 250 (1979). "Ordinarily what is a reasonable time is a question for the jury." Teer Co. v. Dickerson, Inc., 257 N.C. 522, 532, 126 S.E.2d 500, 508 (1962).

In the case sub judice, the court's statement of the law contained in the jury instructions pertaining to this first theory submitted, the theory that an account stated can arise by an implied agreement, was correct. Further, there was sufficient evidence to warrant the submission of instructions under this theory to the jury. Defendants admit to receiving two statements sent by the law firm for fees totaling $10,247.57, one dated 21 September 1981 for $7,729.17 and one dated 16 December 1982 for $2,518.40. The record reveals no objection by defendants prior to the institution of this action by plaintiff law firm on 2 March 1984, approximately two and one half years after receipt of the first statement and one and one fourth years after receipt of the second statement. In defendant Sophia Franklin's letters to attorney Robert McKay she indicated a willingness to pay the amount shown as due. Rather than objecting to the amount, she requested an extension of time to make the payment. From the pleadings, correspondence and testimony there is ample evidence to show an account stated resulted from an implied agreement to pay by failure to object. This charge to the jury was proper.

Defendants' specific objection pertains to the jury instruction under the second theory of an account stated, that is, an account stated pursuant to G.S. 8-45. The pertinent portion of the challenged jury charge is as follows:

Now, members of the jury, the law provides in Chapter 8, Section 45 of the statutes of the State of North Carolina that in an action instituted in any court of this state upon an account for services rendered, a verified, itemized statement of such account shall be deemed prima faci[e] evidence of its correctness. Now, prima faci[e] evidence is sufficient to justify, but does not compel a finding by the jury that the verified, itemized statement of the account is correct.

G.S. 8-45 was designed to facilitate the collection of accounts not in dispute. Bramco Elec. Corp. v. Shell, 31 N.C.App. 717, 230 S.E.2d 576 (1976). G.S. 8-45 provides:

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

Defendants contend the evidence introduced to show the account was not a verified itemized statement; hence, the evidence was insufficient to warrant submission of a jury instruction regarding prima facie evidence under this statute. We agree, but hold the error is harmless.

To make out prima facie evidence under G.S. 8-45, the account must not only be properly verified and itemized, it must also be stated so as to show an indebtedness. Kight v. Harris, 33 N.C. App. 200, 203, 234 S.E.2d 637, 639 (1977). The two statements attached to the complaint showing amounts due for services rendered are not properly verified. In court, plaintiff introduced evidence of eight pages of unverified computer printout, a computer tabulation of all work performed by the law firm on the action Cooper Funding, Ltd. v. Eugene Franklin and Sophia Franklin during the entire time at issue. The services shown are itemized by date, nature of service rendered, time worked and name of the attorney who performed the service. This computer tabulation was the firm's method of billing and was thus made in the regular course of business. Mr. McKay was familiar with the system and the particular pages of printout entered into evidence. The pages of printout were made near the time the work was done. The statements attached to the complaint were based upon the unverified computer printout. Hence, the statements and printout are not admissible as verified itemized statements under G.S. 8-45. It was error to instruct the jury on an account stated pursuant to G.S. 8-45. However, this evidence was admissible under the business records exception to the hearsay rule. Bond Park Truck Service, Inc. v. Hill, 53 N.C.App. 443, 281 S.E.2d 61 (1981). Because evidence of the account was admissible and because the jury was correctly instructed on the law pertaining to an account stated by an implied agreement, this error is rendered harmless.

In defendants' last Assignment of Error defendants contend there is no basis for establishing the indebtedness as to defendant Eugene Franklin and that the judgment against him is error. Allegation No. 2 of defendants' answer stated, "It is admitted that legal services were rendered for Defendants by the law firm named Santora, Shenkman, and Kushel in regard to the civil action [in New York]." Admissions are binding upon the parties. Crowder v. Jenkins, 11 N.C.App. 57, 180 S.E.2d 482 (1971). We deem this admission of receipt of legal services binding on defendant Eugene Franklin. Further, both statements on account were sent by the law firm to "Sophia and Eugene Franklin." Defendant Eugene Franklin failed to object to owing plaintiff for services rendered on his behalf. On both grounds, defendants' last Assignment of Error is overruled.

No error.

HEDRICK, C.J., and WHICHARD, J., concur.